Chapter 18.104
AMENDMENTS, CHANGES AND PROCEDURES

Sections:

18.104.010    General procedures for rezoning, conditional uses and variances.

18.104.020    Procedures for rezonings.

18.104.030    Rezoning with special limitations.

18.104.040    Removal of special limitations.

18.104.050    Procedures for conditional uses.

18.104.060    Procedures for variances.

18.104.070    Procedures for highway project variances.

18.104.080    Zoning permits.

18.104.090    Appeals.

18.104.010 General procedures for rezoning, conditional uses and variances.

A. Initiation. Applications for rezoning, conditional uses and variances shall be made and reviewed according to the following procedures:

1. The applicant shall complete and submit the application forms provided by the borough, along with the required processing fee, prior to the time and date established as the deadline for the planning commission meeting.

2. The department of community planning shall review the submitted request, and submit its recommendation and all other applicable information to the planning commission and borough assembly, as appropriate. The recommendation shall be based upon conformance to the comprehensive plan and other factors required to be considered by law.

3. Applications involving property within 150 feet of the ordinary high water mark of the Chena River shall first be submitted to the Chena riverfront commission for review and recommendation.

B. Hearings. The planning commission shall conduct public hearings on all proposed rezones and quasi-judicial hearings for conditional use permits and variance requests unless specifically exempted under this title. Interested persons may testify and submit other admissible evidence for the planning commission’s consideration at a quasi-judicial hearing. When the applicant is the borough the public may submit written comments and general public comment may be permitted. In its rezone deliberations the planning commission shall consider all oral and written statements from the applicant, the public and the department of community planning. Public testimony on rezones shall be relevant and related to the proposed land use.

C. Public Notification. Rezonings shall become effective only after a public hearing has been held at which all interested persons and/or citizens shall have an opportunity to be heard, and approval has been granted by the borough assembly. Conditional uses and variances shall become effective only after a quasi-judicial hearing has been held and approval granted by the planning commission.

1. Publication of Notice. Notice of the time and place of the public or quasi-judicial hearing shall be published at least 10 days prior to the date of the hearing in a newspaper with general circulation in the jurisdiction of the planning commission and borough assembly.

2. Mailing of Notice by the Department of Community Planning. Notice of the public or quasi-judicial hearing shall be mailed to all owners, as shown by the records of the borough assessor, of property in the area to be considered for a rezoning, conditional use or variance. Notice shall be sent to owners of lots or land either within an area measured 1,000 feet in all directions from the boundaries of the area being considered if the request is of land within the incorporated areas of the cities of Fairbanks and North Pole, or within an area measured 2,000 feet in all directions from the boundaries of the area being considered if the request is of land outside of the incorporated areas of the cities of Fairbanks and North Pole. In either instance at least 10 owners of lots or land outside of the area being considered shall be notified by mail, whereby these distance requirements shall be increased.

3. Notice by Applicant. The applicant shall provide notice of the public or quasi-judicial hearing by posting the land subject to the application for a rezone, conditional use or variance with notice clearly legible from each improved street adjacent to the land, or as determined by the community planning director or his designee. All posted notices shall be in the standardized form provided by the department of community planning and shall be posted at least 20 calendar days prior to the date of the public or quasi-judicial hearing and remain until final action has been taken on the matter. Twenty days before the public or quasi-judicial hearing, the applicant shall submit to the department of community planning a signed affidavit that the notice was posted as required by this subsection and photographs of all posted notices. If a site inspection is conducted, staff will note in the staff report the presence or absence of the posted notice. The applicant shall remove the sign within 10 days following the final public or quasi-judicial hearing.

D. Limitations. A proposed rezoning, conditional use or variance which has been denied by the planning commission and/or the borough assembly on a particular tract of land for a particular purpose cannot again be applied for within six months from the date of the denial, unless a new request is submitted that is determined to be substantially different from the original request (e.g., an application for a different but not necessarily a more restrictive zoning district, use, distance, area, etc.). (Ord. 2017-46 § 3, 2017; Ord. 2015-74 §§ 4 – 6, 2016; Ord. 2014-43 § 2, 2014; Ord. 2002-11 § 2, 2002; Ord. 88-010 § 2, 1988. 2004 Code § 18.54.010.)

18.104.020 Procedures for rezonings.

A. Initiation. The borough assembly may, from time to time, change the zoning of parcels of land within the borough. These changes in zoning classification shall be for the purpose of meeting the land use needs of the residents of the borough in conformance with the comprehensive plan. A change in zoning classification may be initiated by:

1. Any member of the borough assembly or the mayor;

2. Any person or persons; provided, that an application for rezoning is accompanied by a petition favoring the proposed rezoning signed by the owner or owners of at least 51 percent of the property within the area proposed to be rezoned. If any individual property owner owns more than 25 percent of the land area proposed to be rezoned, then the petition shall contain such property owner’s signature. Land owned by the state of Alaska or by the United States of America shall not be included in these computations.

B. Application for a Rezoning. Any member of the borough assembly or the mayor may initiate a rezone by preparation of a suitable ordinance and introduction of same to the borough assembly in accordance with assembly procedures. The planning commission, however, shall not consider a rezone initiated by a member of the borough assembly or the mayor unless the assembly votes to refer the ordinance to the planning commission. Any other person or persons who wish to initiate a rezone shall complete and submit the application forms provided by the department of community planning along with all requested information. The written consent of the owner of the interest in the property to be rezoned, or an authorized representative having power of attorney, shall accompany all applications. The written consent of a holder of a security interest in the property does not need to be obtained. The application shall also include the following information:

1. The legal and common description of the property to be rezoned;

2. The property’s present and proposed zoning classification;

3. The recommendation for use of the property by the borough’s comprehensive plan;

4. The reasons for requesting the rezoning.

C. Hearing and Recommendation by the Planning Commission. The planning commission shall review, hear and recommend whether or not a request for rezoning should be approved. The planning commission shall also consider and adopt findings of fact demonstrating whether or not the proposed rezoning conforms to the comprehensive plan and to the public health, safety and welfare.

The planning commission shall recommend to the assembly one of the following actions:

1. Approve the rezoning request as submitted;

2. Approve the rezoning with special limitations;

3. Recommend an amendment to the request to a more appropriate zoning district; or

4. Disapprove the rezoning request.

D. Submission to the Borough Assembly. Unless the ordinance is not legally approved by the borough attorney, a report of said recommendation together with an ordinance shall be submitted within 30 days of the planning commission’s recommendation to the borough assembly. If a rezone is not submitted to the borough assembly because it is not legally approved by the borough attorney, a written report including the reason will be submitted to the planning department and borough assembly within 10 business days to complete the file.

E. Hearing and Determination by the Borough Assembly. The borough assembly shall review, hear and decide whether or not a request for rezoning shall be approved.

1. The assembly may approve a rezoning as submitted, or with special limitations approved by a majority of the votes cast by the planning commission members who voted on the rezone, or amend the request to a more appropriate zoning district.

2. The assembly may disapprove the rezoning or remand the request to the planning commission with instructions for its reconsideration. (Ord. 2014-43 § 3, 2014; Ord. 2005-31 § 2, 2005; amended during 2004 republication; Ord. 2000-30 § 3, 2000; Ord 99-003 § 2, 1999; Ord. 94-088 §§ 3, 4, 1995; Ord. 88-070 § 7, 1988; Ord. 88-054 § 3, 1988; Ord. 88-010 § 2, 1988. 2004 Code § 18.54.020.)

18.104.030 Rezoning with special limitations.

A. Subject to subsections (B) through (E) of this section, a rezoning may include special limitations that restrict structures, or the use of land or structures, to a greater degree than otherwise provided for in a use district. Special limitations shall be applied only to specific, well-defined projects with site development plans and to mitigate the adverse impacts of the projects and change in rezoning districts. Special limitations shall improve compatibility with the adjoining neighborhood or with the comprehensive plan, or promote the public health, safety, and welfare, including aesthetics. Rezones under this section shall not defeat the general intent of surrounding zones, nor constitute spot zones.

A rezone with special limitations shall become effective only upon the written consent of the owner of the property which shall include the notification required by this section. Whenever special limitations are proposed, the property owner shall be specifically notified they have the right to have the assembly consider their rezone without the requested special limitations and that their requested rezone will go to the assembly for their consideration regardless of whether the property owner accepts or rejects any suggested special limitations.

B. A rezoning may include special limitations for one or more of the following purposes:

1. To prohibit structures, or uses of land or structures, that would adversely affect the surrounding neighborhood or conflict with the comprehensive plan;

2. To conform the rezoning to the comprehensive plan, or to further the goals and policies of the comprehensive plan;

3. To conform development under the rezoning to existing patterns of development in the surrounding neighborhood;

4. To mitigate the adverse effects of development under the rezoning on the surrounding neighborhood and on public facilities and services;

5. To allow for innovation in design or use of land.

C. A special limitation shall do one or more of the following:

1. Limit residential density or prohibit structures or uses of land or structures otherwise permitted in a use district;

2. Require compliance with design standards for structures and other site features;

3. Require compliance with a site plan approved under this title;

4. Require the construction and installation of improvements, including public improvements;

5. Impose time limits for taking subsequent development actions; or

6. Impose time restrictions such as hours of operation or other additional numeric standards on permitted uses.

D. A use district subject to special limitations shall be identified on the zoning map by the suffix “SL,” and the number of the ordinance applying the special limitations shall be printed on the zoning map within the boundaries of the affected use district. A change to a special limitation shall be initiated in the same manner as a change in zoning classification.

E. Where a special limitation in a rezoning conflicts with any less restrictive provision of this title, the special limitation governs. (Ord. 2013-49 § 2, 2013; Ord. 2000-30 § 4, 2000. 2004 Code § 18.54.025.)

18.104.040 Removal of special limitations.

A change to a special limitation may be initiated in the same manner as a change in zoning classification. A special limitation shall be removed when one or more of the following conditions are met:

A. Surrounding and/or neighboring properties have been rezoned to the same zoning district as the concerned property;

B. Prevailing use of surrounding properties no longer warrants imposition of a special limitation;

C. Use of the concerned property has changed thereby no longer warranting imposition of a special limitation;

D. Concerned property is rezoned to another zoning district;

E. The owner proposes a different special limitation that improves compatibility with the adjoining neighborhood or promotes the public health, safety, and welfare to the same extent as the original limitation. (Ord. 2000-30 § 5, 2000. 2004 Code § 18.54.027.)

18.104.050 Procedures for conditional uses.

A. Generally. The development and execution of this title is based upon the division of the borough into districts. It is recognized, however, that there are conditional uses which, because of their unique character and special and unusual impact upon the use of adjacent property, cannot be properly classified in any particular district or districts without consideration, in each case, of the impact of those uses upon adjacent property and upon the public need for the particular use in a particular location. Conditional uses are those operated by a public agency or public utility or uses traditionally associated with the public interest, or uses entirely private in nature but of such a character that their operation may give rise to unique problems with respect to their impact upon adjacent property or public facilities.

B. Application for a Conditional Use. An applicant for a conditional use shall complete and submit the approved application form in accordance with the procedures established herein. The applicant shall be the owner of the property described on the application, the contract purchaser of said property, the holder of an option to purchase said property, or such persons that possess a substantial proprietary interest in the property being considered. The written consent of the owner, or an authorized representative having power of attorney, shall accompany all applications. The written consent of a holder of a security interest in the property does not need to be obtained. The application shall also include the following information:

1. The legal and common description of the property to be considered for a conditional use;

2. The conditional use requested and the reasons for requesting it;

3. The property’s present zoning classification;

4. A site plan showing the subject property and its dimensions;

5. The use, location, size and height of all existing and proposed buildings and structures on the subject property;

6. Where applicable, the location of all existing and proposed curb cuts, driveways, off-street parking spaces and loading areas, traffic circulation patterns, street and right-of-way width, sidewalks, landscaping, screening, open space areas, signage, lighting and other related matters.

C. Hearing and Decision by the Planning Commission. The planning commission shall review, hear and decide whether or not to approve a request for a conditional use. The planning commission shall also consider and adopt findings in each of the following:

1. Whether or not the proposed conditional use conforms to the intent and purpose of this title and of other ordinances and state statutes;

2. Whether or not there are adequate existing sewage capacities, transportation facilities, energy and water supplies, and other public services to serve the proposed conditional use;

3. Whether or not the proposed conditional use will protect the public health, safety and welfare.

The planning commission may approve or deny a conditional use request or may approve a conditional use request with conditions to ensure the protection of the public health, safety and welfare. Such conditions may relate to any, or more, of the following: traffic flow and access requirements, lighting, pedestrian movements, time limits for commencing or ceasing use.

D. Application to Amend a Conditional Use. An owner of a property for which a conditional use has been permitted, the contract purchaser of said property, the holder of an option to purchase said property, or such persons that possess a substantial proprietary interest in said property may apply for amendment of the conditional use relating to said property. An application for amendment of a conditional use shall be processed in the same manner as an application for a conditional use and shall be governed by the procedures set out in this chapter.

E. Application to Amend Conditional Use for a Planned Unit Development. A conditional use for a planned unit development granted under this or a former title may be amended as provided for in subsection (D) of this section.

F. Revocation of Conditional Use Permit.

1. After a mandatory written notification to the permittee and, if feasible, an opportunity to comply with the terms of the conditional use permit within the time frame set at the discretion of the code enforcement officer, the planning commission may revoke a conditional use permit upon a finding of:

a. A material change in the conditional use without an amendment; or

b. Material noncompliance with the conditions prescribed upon issuance of the conditional use permit; or

c. An error, misstatement, or misrepresentation of a material fact by the permittee as to the nature of the conditional use to be conducted.

2. Written notice setting forth the specific grounds for the proposed revocation and the time set for hearing before the planning commission must be mailed or delivered to the permittee at least 30 days prior to the hearing. Publication of notice and mailing of notice procedures applicable to the granting of a conditional use shall apply to a revocation action.

G. Revocation Effect. Unless otherwise ordered, the permittee or owner shall have up to 30 days after the decision of the planning commission or the completion of any appeal to cease the conditional use that has been revoked. The permittee shall be responsible for any and all remediation of the property subject to the conditional use permit as may be ordered by the planning commission or on appeal. Failure to timely cease the conditional use shall be a violation. (Ord. 2014-43 §§ 4, 5, 2014; Ord. 2014-19 § 2, 2014; Ord. 97-014 § 2, 1997; Ord. 88-010 § 2, 1988. 2004 Code § 18.54.030.)

18.104.060 Procedures for variances.

A. Generally. The planning commission may allow a departure from the numerical regulations of this title pertaining to the size of yards and open space areas, building height and size, lot area, number and location of off-street parking spaces and loading areas, and other matters pertaining to the operation and construction of permitted uses.

1. Situations where variances may be granted include, but are not limited to: exceptional narrowness, shallowness or shape of a specific piece of property at the time of the adoption of the ordinance codified in this title; exceptional topographic conditions; other extraordinary or exceptional situations or conditions of a specific piece of property; or because of existing situations or conditions that are generally prevalent in the immediate area that create a character similar to what would occur as a result of an approval of the request for a variance; or where the strict application of this title would result in a peculiar, exceptional and undue hardship, upon the owner of such property.

B. Application for a Variance. An applicant for a variance shall complete and submit the approved application form in accordance with the procedures established herein. The applicant shall be the owner of the property described by the application, the contract purchaser of said property, the holder of an option to purchase said property, or such persons that possess a substantial proprietary interest in the property being considered. The written consent of the owner, or an authorized representative having power of attorney, shall accompany all applications. The written consent of a holder of a security interest in the property does not need to be obtained.

1. An application for variance must meet the following standards:

a. Special conditions exist which are peculiar to the land involved and which are not applicable to other land in the same zoning district;

b. Strict interpretation of the provision of the zoning title would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of the zoning title.

2. The application shall also include the following information:

a. The legal and common description of the property on which the variance is to be considered;

b. The variance requested, and the reasons for the request;

c. The property’s present zoning classification;

d. A mortgage location survey or other similar survey drawn to the standard of practice for land surveyors as adopted by 12 AAC 36.250, showing all buildings, except temporary buildings, in relation to the relevant boundaries of the parcel. Borough staff will verify that the survey depicts all buildings and relevant current conditions to the best of their abilities. If the survey is deemed by borough staff to not be current, a new survey will be required.

C. Hearing and Decision by the Planning Commission. The planning commission shall review, hear and decide whether or not to approve a request for a variance. In deliberations, the planning commission shall consider all admitted evidence from the applicant, interested persons and borough staff. The planning commission shall also consider and adopt findings in each of the following:

1. Whether or not the proposed variance conforms to the intent and purpose of this title and of other ordinances and state statutes;

2. Whether or not the denial of the proposed variance will deprive the applicant the use of his/her property in a manner equivalent to the use permitted to be made by the owners of property in the immediate area;

3. Whether or not the proposed variance will protect the public health, safety and welfare, including protection from the impact of traffic, parking conditions, and the danger of fire;

4. The history of the development of the property.

The planning commission may approve or deny a variance request or may approve a variance request with conditions upon the property benefited by the variance as may be necessary to comply with the standards set forth in this title to ensure consistency with the general intent of this title.

D. Administrative Approval of Yard Setback Variance.

1. Notwithstanding any requirements in this chapter to the contrary, if a yard setback variance is being requested and the property meets the following requirements, the variance may be heard by the planning director or designee, as hearing officer, at an administrative hearing:

a. The relevant area of the building for which the setback variance is requested was built prior to April 25, 1988, or the setback violation existed when the property was purchased by the current owner prior to July 21, 2010;

b. The setback variance request is for 50 percent or less of the yard requirement;

c. The setback variance request meets the state requirements set forth in AS 29.40; and

d. The setback variance will not be injurious to the health, safety or welfare of the neighborhood.

2. Within five working days after the administrative yard setback variance application deadline, one of the following actions shall be taken by the community planning department:

a. Accept the application for a review and action by the hearing officer;

b. Return the application if it is incomplete;

c. Schedule the application for a planning commission hearing if it is determined that a more comprehensive review is needed.

3. The hearing officer shall make the final decision within five working days of the hearing. If, as a result of the hearing, the hearing officer determines that conditions exist that may adversely affect the public health, safety or welfare, traffic or parking, or otherwise may necessitate a more comprehensive review by the planning commission, the hearing officer may forward the application to the planning commission in lieu of a decision. The requested variance shall be heard before the planning commission without an additional fee.

4. An administrative yard setback variance decision by the planning director or designee may be appealed by any aggrieved person, as defined in FNSBC 18.104.090(A)(4), to the planning commission by filing a notice of appeal with the community planning department within 15 days after the final decision was mailed. The appeal shall be heard de novo by the planning commission. The planning commission’s decision may be appealed by a party to the board of adjustment. (Ord. 2015-74 § 7, 2016; Ord. 2015-07 § 2, 2015; Ord. 2014-43 §§ 6, 7, 2014; Ord. 88-010 § 2, 1988. 2004 Code § 18.54.040.)

18.104.070 Procedures for highway project variances.

A. Generally. The planning commission may allow a departure from the numerical standards of this title pertaining to the size of yards and open space areas, building height and size, lot area, number and location of off-street parking spaces and loading areas, and other matters. Highway project variances must be a direct result of right-of-way acquisition.

B. Application for a Highway Project Variance.

1. An applicant for a highway project variance shall complete and submit an application form provided by the borough. The applicant shall be the owner of the property described in the application, the contract purchaser, the holder of an option to purchase, or a person who possesses a substantial proprietary interest, or an entity with public interest in said property. The written consent of the owner or holder of a security interest in the property shall not be required as part of the application. If the highway project variance is granted, written consent of the property owner or authorized representative having power of attorney shall be required as a condition of approval;

2. An application for highway project variance shall be evaluated by the following criteria:

a. Whether special conditions exist which are peculiar to the property involved and which are not applicable to other property in the same zoning district, and

b. Whether strict interpretation of this title would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district;

3. The application shall include the following information:

a. The legal and common description of the property on which the highway project variance is to be considered,

b. The type of variance requested, amount requested, and the reasons for the request,

c. The property’s present zoning classification,

d. A site plan showing:

i. The subject property and its dimensions,

ii. Structures before and after right-of-way take and distances of structures from all property lines including old and new right-of-way lines,

e. Amount of right-of-way take from the subject lot,

f. Amount remaining to the subject lot after right-of-way take,

g. Letter from Alaska Department of Environmental Conservation specific to each lot, with conditions, if applicable, regarding development suitability.

C. Hearing and Decision Process.

1. Variance Requests Not Greater Than 10 Percent. If the director of community planning determines no extraordinary circumstances exist, highway project variances which depart from the numerical standards of this title by not greater than 10 percent shall appear on the consent agenda of the planning commission. Affected property owners may address the variance application during the citizen’s comments portion of the agenda. The planning commission may remove the item from the consent agenda and may approve, approve with conditions, or deny the highway project variance. The planning commission may also refer the application to a full review including public hearing in accordance with procedures outlined for highway project variances greater than 10 percent.

If the director of community planning determines extraordinary circumstances do exist, the highway project variance will appear as a regular agenda item scheduled for public hearing in accordance with procedures outlined for highway project variance greater than 10 percent.

2. Variance Requests Greater Than 10 Percent. Departures of greater than 10 percent from the numerical standards shall be considered by the planning commission in a quasi-judicial hearing.

D. The planning commission shall also consider and adopt findings of fact in each of the following:

1. Whether the proposed variance conforms to the intent and purpose of this title and of other ordinances and Alaska Statutes;

2. Whether the denial of the proposed variance will deprive the property owner of the use of property in a manner similar to the use permitted to be made by the owners of property in the immediate area; and

3. Whether the proposed variance will adversely affect the public health, safety, and welfare, traffic or parking conditions, or increase the danger of fire.

The planning commission may approve or deny a highway project variance request or approve the request with conditions. (Ord. 2014-43 §§ 8, 9, 2014; Ord. 92-023 § 2, 1992. 2004 Code § 18.54.045.)

18.104.080 Zoning permits.

A. Generally. The requirement of obtaining a zoning permit is deemed necessary and appropriate. A review of the zoning permit application ensures the development’s conformance with the regulations and provisions of this title and other ordinances.

B. Requirements. Before any excavation, construction, relocation or installation is started for a new use, a zoning permit shall be obtained by the owner, or his/her authorized representative, of any land in both the incorporated and unincorporated areas of the borough. The zoning permit application shall include the necessary information and be submitted in accordance with the standards and procedures as adopted by the borough and as required in this title and other ordinances.

1. Except for conditional uses and permitted marijuana establishments, changes made to any land or use in the general use districts and outside any designated special landscape area overlay zone do not require a zoning permit.

2. The clearing or grading of a lot does not require a zoning permit.

3. Construction activities as described in the 2015 Edition of the International Building Code, Section 105.2, “Building,” do not require a zoning permit.

C. Issuance. The planning department shall complete the review of a zoning permit application within five business days of the time of submission, or within 15 business days of the time of submission if the property is located in the special landscape area. The department shall not approve a zoning permit application until it is satisfied that the proposed development meets the regulations and provisions of this title and other ordinances. A zoning permit application shall not be accepted for property located within the special landscape area until a preliminary landscape plan is submitted, approved, and a performance bond or other guaranty is obtained in accordance with FNSBC 18.92.110(F).

D. Any applicant denied a zoning permit due to noncompliance of the landscaping requirements may appeal to the administrative hearing officer. The appeal shall be made in writing and submitted within 10 working days of rejection of the zoning permit. (Ord. 2017-72 § 5, 2018; Ord. 2016-40 § 82, 2016; Ord. 2015-41 § 20, 2015; Ord. 2007-04 § 4, 2007; Ord. 88-010 § 2, 1988. 2004 Code § 18.54.060.)

18.104.090 Appeals.

A. Initiation of Appeal. Decisions may be appealed to the board of adjustment or a hearing officer by:

1. An applicant for a conditional use or variance;

2. The permittee or owner of land for which a conditional use has been revoked;

3. Any governmental agency or unit;

4. Any person aggrieved by a decision or determination made by the director of the department of community planning in the enforcement of this title, or by a decision of the planning commission concerning a request for conditional use or variance. To be considered a “person aggrieved,” the person must qualify as an interested person and if a quasi-judicial hearing was held must have participated in the hearing as a party or interested person. A request for variance from the terms of the land use regulations may be appealed when literal enforcement would deprive a property owner of rights commonly enjoyed by other properties in the district. (Ord. 2016-40 § 24, 2016; Ord. 2015-74 § 8, 2016; Ord. 2014-19 § 3, 2014; Ord. 94-003 § 2, 1994. 2004 Code § 18.54.070.)