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26.0320 Variances.

Cite as [A.S.A.C. § 26.0320]

The board may grant a variance from the regulations applicable to a zone if the board finds that the variance is necessary to make possible a reasonable use of land or a building or that refusal of a variance would impose a hardship and that the variance would not be injurious to the neighborhood.

For this section an “interested party” shall be any person who appears before the board relative to an application for a variance either in writing or in person or by an agent or attorney.

Pursuant to 26.0340 A.S.C.A., the board hereby establishes procedures for application, notice, public hearings and conditions:

(a) Application shall be made for a variance on a form prescribed by the board. The application shall contain the following information as deemed necessary by the board, and no application shall be heard which does not contain this information filed in advance, unless waived by the board:

(1) Name, address and telephone number(s) of applicant.

(2) Description of property, including legal description, address, common means of identification and map showing location with common landmarks.

(3) Map of the boundaries of the parcel and each separate lot or parcel within 300 feet of the exterior boundaries thereof; together with a list of the names and mailing addresses or the last known owners of public needed, tenant or matai.

(4) A statement of the reason(s) for a variance.

(5) A scale drawing of the site showing the location of any existing or proposed streets, alleys, property lines, uses, structures, driveways, pedestrian walks, off-street parking and off-street loading facilities and landscaped areas.

(6) A copy of the lease or proof of intention to lease, or proof of ownership or use.

(7) A typical floor plan for each floor showing work areas, bathrooms, water and sewage facilities, storage area(s), and other uses with necessary measurements.

(8) Such other information, plans, maps, diagrams and information that may be necessary to assure full presentation of pertinent facts for the record to assist the board in making a determination.

(b) The application must be accompanied by a receipt showing that the application fee of $10.00 has been paid.

(c) The board shall hold a public hearing within 45 days after acceptance of application. Notice of the time and place and purpose of each public hearing shall be given as follows:

At least 10 days prior to the date set for the hearing, and not before 20 days prior to that date, the administrator shall see that a notice thereof is mailed or hand delivered by the applicant to each property owner, tenant or matai, as the case may be, whose name and address appears on the list accompanying the application as required by subsection (a)(4) above. The notice shall be on a form prescribed by the board and give the date, time and place of the hearing, the name of the applicant, the request of the application, the identification of the subject property and such other information as may be prescribed by the board in any individual case. In certain cases, such as more than 10 property owners or tenants involved or unknown owners, the board may require that in lieu of mailing or hand delivery of notices that a notice shall also be published by the applicant in a newspaper and on the radio at least once a week for 3 weeks prior to such meeting, and the applicant shall also post a notice at the Court House and at a location close to the subject property at least 21 days prior to the hearing.

(d) The board may grant the variance provided that it is established by evidence presented to the board that the proposed building or use is in accordance with the foregoing provisions of the zoning law and further that the following qualifications have been met:

(1) The location of the building or use is compatible to other land uses in the general neighborhood area and does not place on undue burden on existing transportation, utilities, education, water, sewage and service facilities in the vicinity.

(2) The site is of sufficient size to accommodate the proposed building or use together with all yards, open spaces, walls and fences, parking and loading facilities, landscaping and such other provisions required by statute or by this chapter.

(3) The site will be served by streets or alleys of sufficient capacity to carry the traffic generated by the proposed building or use.

(4) The proposed building or use, if it complies with all conditions on which approval is made contingent, will not adversely affect other property in the vicinity or the general welfare of the territory,

(e) The board may deny the application for a variance.

(f) In approving an application for a variance, the board may require higher standards of site development than listed for such use in Chapters 03 or 05 Title 26 A.S.C.A., and make approval contingent on the acceptance and observance by the applicant of specified conditions relating to but not limited to, the following considerations:

(1) Conformity to plans and drawings submitted with the application;

(2) The provision of open spaces, buffer strips, screen walls, fences, hedges and landscaping;

(3) The volume of traffic generated, vehicular movements within the site, and points of vehicular ingress and egress;

(4) Performance characteristics related to the emission of noise, vibration, and other potentially dangerous or objectionable elements;

(5) Limits in time of day for the conduct of specified activities;

(6) Guarantees as to compliance with the terms of the approval.

(g) Within 30 days of the close of the hearing on, or upon conclusion of investigation into, the application the board shall make a written finding and decision which shall be served on the applicant and all interested parties who in writing request a copy.

(h) Within 10 days of receipt of the decision the applicant or any other interested party may file a written motion for reconsideration stating the reasons for the reconsideration if there is new evidence or additional factors to support a reconsideration hearing.

(i) On a motion to reconsider the board may affirm, reverse or modify its decision, provided if the board reverses or modifies its decision it must make new findings pursuant to subsections to (d) and (f) above.

(j) Unless renewal of a variance is requested, it shall lapse 180 days after its issuance unless prior to that date a business license has been issued or if a building is to be constructed, reconstructed, or, modified, a building permit has been issued, and construction is commenced and diligently pursued. A request for a renewal must be accompanied by a statement under penalty of perjury by the applicant or his authorized agent stating the reason no business license or building permit has been issued and/or the reason no construction has been commenced. A variance may be renewed by the board for a period of 30 days.

(k) On violation of any of the provisions of this or any other applicable rules by a holder of a variance or on failure of the holder to comply with conditions of a variance, the variance shall be suspended automatically. A hearing shall be called within 30 days, and at the hearing the board must be satisfied that either the violation has been discontinued or the condition met, otherwise the variance will be revoked.

History: Rule 5-88, eff 13 Jul 88.