Chapter 19.04
ZONING REGULATIONS
Sections:
19.04.010 Application of regulations.
19.04.040 Private use of public property.
19.04.050 Preexisting nonconforming uses.
19.04.060 Variances and conditional use permits.
19.04.090 Administration, enforcement and penalties.
19.04.100 Administrative appeal for civil fines.
19.04.010 Application of regulations.
The regulations set by this title within each district shall be minimum regulations, and shall apply uniformly to each class or kind of structure or land and, particularly, except as hereinafter provided:
A. No building or land shall hereafter be used or occupied and no building or part thereof shall be erected, moved or altered unless in conformity with the regulations herein specified for the district in which it is located.
B. No structure shall hereafter be erected or altered:
1. To exceed the height;
2. To accommodate or house a greater number of families;
3. To occupy a greater percentage of lot area; or
4. To have narrower or smaller rear yard, front yard or side yard than is specified herein for the district in which such building is located.
C. No yard or other open space provided about any building for the purpose of complying with the provisions of this chapter shall be considered as providing a yard or open space for any other building, and no yard or open space on one (1) lot shall be considered as providing a yard or open space on any other lot.
D. The connection of two (2) buildings or structures, including the connection of an existing dwelling unit to another dwelling unit, an existing accessory building to the main building, two (2) mobile homes, or two (2) manufactured homes, by means of a breezeway, arctic entry, or common roofline, does not constitute a single building or structure and shall not be deemed to make them a single building or structure, on lots south of 15th Avenue.
(Ord. 19-07, Amended, 05/16/2019; Ord. 84-26, Repealed & Replaced, 11/08/1984)
19.04.020 General provisions.
A. District boundaries.
1. Where uncertainty exists as to the boundaries of districts as shown on the zoning map, the following rules shall apply:
a. Boundaries indicated as approximately following the centerlines of streets, highways or alleys shall be construed to follow such centerlines;
b. Boundaries indicated as approximately following platted lot lines shall be construed as following such lot lines;
c. Boundaries indicated as approximately following section or section subdivision lines shall be construed as following such section or such section subdivision lines;
d. Boundaries indicated as following shorelines shall be construed to follow such shorelines, and any such lines shall be construed as moving with the actual shoreline;
e. In unsubdivided property the location of any district boundary, unless the same is indicated by dimensions shown on same map, shall be determined by the use of the scale appearing thereon;
f. In other circumstances not covered by paragraphs (a) – (e) of this subsection, the planning commission shall interpret the district boundaries.
2. Where any public street or alley is officially vacated, the regulations applicable to each parcel of abutting property shall apply to that portion of such street or alley added thereto by virtue of such vacation.
3. Any land newly included within the corporate boundaries of the municipality subsequent to the adoption of the regulations codified in this chapter shall be automatically classified in the RC district until otherwise classified by amendment.
B. Uses.
1. Uses other than those specifically permitted in each of the districts may be permitted, provided that such uses are similar to those mentioned and are determined by the planning commission to be not more detrimental to the welfare of the community than the permitted uses.
2. Uses other than those specifically excluded from each of the districts may be excluded provided that such uses are determined by the planning commission to be not less detrimental to the welfare of the community than those uses specifically excluded.
C. Setbacks.
1. Setbacks are measured from the outermost portion of the building to the nearest lot line. Incidental architectural features such as window sills and cornices may not project into any required setback. This regulation also applies to cantilevered floors, decks or other similar structures. No buildings or structures may be located within a setback.
2. The following items shall be exempt from setback requirements, provided the item is located to achieve its purpose without constituting a hazard to vehicles or pedestrians, is located such that it does not obscure sight angles at intersections or driveways, and is not in any location prohibited by state regulation or other municipal ordinance:
a. Fences in accordance with subsection (G)(1) of this section.
b. Garden boxes.
c. Building eaves; provided, that the bottom edge of the eave is no less than eight feet (8') above grade; does not extend more than two feet (2') into setbacks where the wall height is less than twenty feet (20'); and does not extend more than three feet (3') into setbacks where the wall height is more than twenty feet (20').
3. Where more than one (1) setback standard is applicable, the most restrictive setback standard applies.
D. Height of Buildings.
1. Roof structures for the housing of equipment required to operate and maintain the building, or other necessary structures such as stairwells, chimneys and flagpoles, may be erected above the prescribed height limit, but no roof structure shall be erected for the purpose of providing additional floor space above the prescribed height limit.
E. Lots and Lot Areas.
1. The requirements as to minimum lot area shall not be construed to prevent the use for a one (1) family dwelling or any lot or parcel of land, in the event that such lot or parcel of land was, on the effective date of the regulations codified in this title, legally subdivided and separately owned.
2. No lot or parcel of land shall be reduced in any manner below the required minimum lot area or width.
3. No lot area shall be so reduced, diminished or maintained that the yards or other open spaces or total lot area shall be smaller than prescribed by these regulations.
4. Every building hereafter erected shall be located on a lot as herein defined. If it is located on two (2) or more lots, the building location must conform to the side yard requirements, or it may straddle an interior lot line of such a parcel or lots. In no case shall there be more than one (1) main residential building and its accessory buildings on one (1) lot, unless specifically provided otherwise.
F. Yards.
1. Where yards are required, they shall not be less in depth or width than the minimum dimensions in any part, and they shall be at every point open and unobstructed from the ground to the sky, except as follows:
a. Outside stairways, fire escapes or porches, if unroofed and unenclosed, may extend into a required yard for a distance not to exceed three feet (3').
b. Cornices, canopies, eaves or other similar architectural features not providing additional floor space within the building may not extend more than two feet (2') into a required yard.
c. A detached accessory building not exceeding fourteen feet (14') in height may be permitted to occupy a rear yard, provided that not more than one-third (1/3) of the total area of such rear yard shall be so occupied.
G. Fences and Walls.
1. On any corner lot in any RG district, there shall be no fence or hedge more than three and one-half feet (3' 6") high within twenty-five feet (25') of the intersection of the adjacent street lines, except that shade trees or other plants of sufficient height to permit sight under the lowest branches or foliage may be permitted.
(Ord. 19-08, Amended, 05/16/2019; Ord. 17-05, Amended, 04/20/2017; Ord. 12-11, Amended, 05/17/2012; Ord. 84-26, Repealed & Replaced, 11/08/1984)
19.04.030 Public uses.
To insure that public uses and structures conform to the general community pattern and, insofar as practical, to regulations governing private uses and development, agencies of the state and federal governments shall submit plans and receive approvals in conformance with the regulations outlined herein.
(Ord. 84-26, Repealed & Replaced, 11/08/1984)
19.04.040 Private use of public property.
Whenever private use is made of any public land or public structures such private use shall fully conform to the regulations set forth in this title.
(Ord. 84-26, Repealed & Replaced, 11/08/1984)
19.04.050 Preexisting nonconforming uses.
A. Any otherwise lawful use of land, structure, building or premises, including parking areas, existing on November 2, 1972, but not conforming to the provisions of this title, may be continued, provided that:
1. If such nonconforming use is discontinued for a period of over ninety (90) days, or is abandoned, the use of such land thereafter shall be subject to the provisions of this title;
2. No building used for such nonconforming use shall be added to, structurally altered, or enlarged in any manner; or shall anything be done that would influence the perpetuation of such nonconforming use or building beyond the normal or reasonable period of time that the same would exist under the conditions prevailing on November 2, 1972;
3. No nonconforming use occupying a conforming building or portion thereof, or occupying any land, shall be enlarged or extended into any other portion of such building or land not actually so occupied on November 1, 1972.
4. Residential dwellings between the airport runway and Alaska Street and between 1st Street and 16th Street that existed on June 1, 1990 are exempted from the provisions governing nonconforming uses found at 19.04.050.
5. Residential dwellings on State Street between the 23rd Street bridge south to the alley between 7th and 8th Streets, and residential dwellings that are parallel to State Street but two lots east or west of State Street between the 23rd Street bridge south to the alley between 7th and 8th Streets, that existed on June 1, 1990 are exempted from the provisions governing nonconforming uses found at 19.04.050.
6. Residential dwellings between 21st and 22nd Streets and State Street and Alaska Street that existed on June 1, 1990 are exempted from the provisions governing nonconforming uses found at 19.04.050.
B. No building which has been damaged or partially destroyed to the extent of more than fifty percent (50%) of its assessed value shall be repaired, moved or altered except in conformity with the provisions of this title and Title 15 of this code.
C. Mobile homes or trailers in nonconforming locations shall be governed by Chapter 15.14 of Title 15 of this code.
(Ord. 90-15, Amended, 05/31/1990; Ord. 84-26, Repealed & Replaced, 11/08/1984)
19.04.060 Variances and conditional use permits.
A. Variances.
1. Purpose. The planning commission shall consider and decide applications for variances. Variances are intended to provide a mechanism for the relaxation of such standards as minimum lot or yard requirements, setback, or building coverage, when the applicant shows, and the planning commission finds, that the criteria in subsection (A)(3) of this section, Standards, are met. No variance shall be granted because of special conditions caused by actions of the person seeking relief, or for reasons of pecuniary hardship or inconvenience; nor shall any variance be granted which would permit a land use in a district in which that land use has been prohibited.
2. Application for Variance Permits.
a. Submission and Contents. The applicant shall submit to the clerk of the planning commission, one (1) copy of the completed permit application verified by the owner of the property concerned together with all supporting materials and the permit fee. The application shall contain the following information:
(i) The owner or owners of the property for which the variance has been requested;
(ii) The variance requested;
(iii) A legal description of the property involved;
(iv) A plot plan indicating date, north arrow, scale, exterior property boundaries and location of all existing and proposed buildings on the property, elevations and dimensions of such buildings or alterations, and such other data as may be required and their approximate distance from lot lines;
(v) Access for ingress and egress, sewer and water lines serving the property, power poles and all easements on the property; and,
(vi) Construction details, approximate dimension of parking areas and spaces, if applicable, and other information as necessary to illustrate the impact of the proposed variance.
b. Filing Fee. Upon recommendation of the planning commission, the borough assembly shall establish a fee schedule to cover the costs of legal advertisement, mailed notification, and other fees, if any. These fees must be filed with the application for the variance permit. Upon written request by the applicant, the application may be withdrawn, the fee may be refunded; provided, that the clerk of the planning commission has not mailed notice to surrounding property owners and prior to the final date of public notification.
3. Standards. The planning commission must find all four (4) of the following conditions to exist in order to grant the variance:
a. That there are exceptional physical circumstances or conditions applicable to the property or to its intended development which do not apply generally to the other properties in the same zoning district;
b. That the strict application of the provisions of this title would result in practical difficulties or unnecessary hardship. Financial difficulty is not considered a hardship;
c. That the granting of the variance will not result in material damage or prejudice to other properties in the vicinity, nor be detrimental to the public health, safety or welfare;
d. That the granting of the variance will not be contrary to the objectives of the comprehensive plan.
4. Standards for a Building Height Exemption. Only standards in subsections (A)(4)(a) through (c) of this section must be met in order to grant a variance permit for a building height exemption. No other standards apply. The planning commission may require the applicant to submit whatever reasonable evidence may be needed to protect the public interest. The burden of proof rests with the applicant. In considering the granting of a variance permit for a building height exemption, a majority of the planning commission members, after a public hearing, must find in writing that:
a. The building can be protected by the Skagway Volunteer Fire Department, is constructed of non-combustible materials, or has fire suppression systems to comply with requirements for that particular use;
b. The building height would not cause conflicts with surrounding land use; and
c. The immediately adjacent property’s viewshed and open access to the sun shall not be unduly impacted.
5. Standards for Yard Setback Exemptions in the Business-Historical Zoning District. Only standards in subsections (A)(5)(a) through (f) of this section must be met in order to grant a variance permit for a yard setback exemption in the Business-Historical zoning district. No other standards apply. The planning commission may require the applicant to submit whatever reasonable evidence may be needed to protect the public interest. The burden of proof rests with the applicant. In considering the granting of a variance permit for a yard setback exemption in the Business-Historical zoning district, a majority of the planning commission members, after a public hearing, must find in writing that all six (6) of the following are met:
a. Adjacent property owners will not be adversely impacted by the sloughing of rooftop snow or drainage from the applicant’s property;
b. There is adequate space for the storage and servicing of on-site refuse;
c. There must be adequate space for the placement and maintenance of existing or future outdoor fuel tanks;
d. Public utilities on the property shall not be covered by permanent structures and shall have adequate space around them for maintenance. If any moving of utilities would be required due to the granting of the variance, the property owner shall bear the cost;
e. Fire protection standards are met per SMC 15.08.010, Fire Prevention Code; and
f. The ninety percent (90%) maximum total lot coverage requirement in the Business-Historical zoning district will not be exceeded by granting the variance.
6. Public Hearing – Notification and Publication. The planning commission shall hold a public hearing upon each properly submitted application. From the time of filing such application until the time of such hearing, the application, together with all plans and information submitted, shall be available for public inspection in the office of the borough clerk. The hearing shall be held no later than thirty (30) days following the date of filing of such application. The planning commission may extend the time for the public hearing in its discretion, at the request of the applicant, or upon determination by the clerk of the planning commission of the lack of a quorum. Public notice may be given in a newspaper of general circulation in the municipality, stating the date, time, place and purpose of the hearing, and generally describing the variance sought. The notice shall be posted in two (2) public places in the municipality. The clerk of the planning commission shall also mail a copy of the notice by first class mail to the owners of property, as follows:
a. Owners of property located within three hundred feet (300') from any point on the outside perimeter of the property for which a variance has been requested; and
b. The owner or owners of the property for which the variance has been requested.
7. Investigation. The commission shall cause to be made an investigation of facts bearing on any application sufficient to assure that the action taken is consistent with the intent and purpose of this title. The commission shall hear and consider evidence and facts from any person at the public hearing, or written communication from any person relative to the application.
8. Determination and Conditions. Within thirty (30) days from the conclusion of the public hearing, the commission shall render its decision, unless such time limit is extended by common consent and agreement signed by both the applicant and the commission. The commission, in granting the variance, may establish conditions under which a lot or parcel of land may be used, or may make any other conditions, requirements or safeguards that it may consider necessary to prevent damage or prejudice to adjacent properties, or detriment to the municipality. The decision of the planning commission, either for the granting, with or without conditions, or the denial of an application for variance, shall become final and effective ten (10) days following such decision. Any variance approved by the planning commission shall be conditional upon the privilege granted being utilized within six (6) months after the effective date of the variance.
9. Recording. The planning commission shall cause to be recorded with the district recorder for Skagway, all variance permits granted by the planning commission. It shall also cause to be recorded all resolutions of the commission revoking or modifying any variance permit. Subsequent owners of property subject to a variance permit succeed to the benefits and limitations of the original permit holder.
B. Conditional Uses.
1. Purpose. A conditional use permit gives site specific flexibility to the zoning regulations in a uniform and controlled manner. It permits uses that are desirable to the community, but may not be suitable at every location in the zone based on character, intensity, size or impact on surrounding uses. The planning commission may attach restrictions and conditions designed to fit the special problems, which the use presents.
2. Application for Conditional Use Permits.
a. Submission and Contents. The applicant shall submit to the clerk of the planning commission, one (1) copy of the completed permit application together with all supporting materials and the permit fee. The application shall contain the following information:
(i) The owner or owners of the property for which the conditional use has been requested;
(ii) The conditional use requested;
(iii) A legal description of the property involved;
(iv) A plot plan indicating date, north arrow, scale, exterior property boundaries and location of all existing and proposed buildings on the property, elevations and dimensions of such buildings or alterations, and such other data as may be required and their approximate distance from lot lines;
(v) Access for ingress and egress, sewer and water lines serving the property, power poles, and all easements on the property;
(vi) Construction details, approximate dimension of parking areas and spaces, if applicable, and other information as necessary to illustrate the impact of the proposed conditional use.
b. Filing Fee. Upon recommendation of the planning commission, the borough assembly shall establish a fee schedule to cover the costs of legal advertisement, mailed notification, and other fees, if any. These fees must be filed with the application for the conditional use permit. Upon written request by the applicant, the application may be withdrawn, the fee may be refunded; provided, that the clerk of the planning commission has not mailed notice to surrounding property owners and prior to the final date of public notification.
3. Standards. The planning commission may require the applicant to submit whatever reasonable evidence may be needed to protect the public interest. The burden of proof rests with the applicant. In considering the granting of any conditional use permit, a majority of the entire planning commission members, after a public hearing, must find in writing that:
a. The requested conditional use will protect the public health, safety, and welfare; and
b. The requested conditional use will not permanently or substantially injure the lawful use of neighboring properties or uses; and
c. The requested conditional use will generally be in harmony with the comprehensive plan, coastal management plan, and other officially adopted plans; and
d. The requested conditional use will not substantially decrease the value of or be out of harmony with property in the neighboring area.
4. Restrictions and Conditions. In granting a conditional use permit, the planning commission may, in order to assure compliance with the foregoing standards, require and attach conditions which may include one (1) or more of those found at subsections (B)(4)(a) through (n) of this section. Such restrictions and conditions must be within the power of the property owner or developer to accomplish and must bear a reasonable relationship to the use of the property for which the permit is requested.
a. Conditions that affect dimensional and lot standards including lot size, yard requirements, lot coverage, building setback requirements and height of structures.
b. Conditions such as time limits that affect the development schedule to minimize construction-related disruption to traffic and the neighborhood or to implement other requirements.
c. Conditions that consider the possible or probable effects upon factors such as topography, slope and soil stability, geophysical hazards such as flooding, surface and subsurface drainage and water quality.
d. Conditions that affect utilities and service requirements, including sewers, storm drainage, water, fire protection, access and electrical power. The planning commission may enlist the aid of relevant public utility officials with specialized knowledge in evaluating the probable effects of the proposed use and may consider the costs of enlarging, upgrading, or extending the public utilities in establishing conditions under which the conditional use may be permitted.
e. Conditions that affect community appearance such as landscaping, fencing and screening.
f. Conditions that affect adequate and lawful parking, curb cuts, traffic movement, and that ensure access is adequate to serve the additional volume of traffic.
g. Conditions such that the unsightliness, building height, or structural incompatibility would not significantly affect surrounding areas or the viewshed.
h. Conveyance of title, easements, licenses, or other property interests to government entities, public utilities, or owner’s associations.
i. Conditions may be imposed to discourage production of more than sixty-five (65) dba of sound at the property line during the day and fifty-five (55) dba at night.
j. Conditions may be imposed to improve on- and off-site drainage.
k. Conditions may be imposed to require dedication of public access easements to streams, rivers and tidewater.
l. Other conditions which will uphold the policies of the zoning regulations, the comprehensive plan and the harmony and beneficial use of neighboring uses.
m. The planning commission may also require an agreement and performance bond to insure compliance with such restrictions and conditions.
n. The permit may be automatically revoked upon the occurrence of specified events. In such case, it shall be the responsibility of the owner to apply for a new permit. Any order revoking a permit shall state with particularity the grounds therefor and the requirements for the re-issuance. Compliance with such requirements shall be the sole criteria for re-issuance.
5. Issuance or Denial of Conditional Use Permit; Findings of Fact. In passing upon an application for a conditional use permit, the planning commission shall, after notice and hearing as hereinafter provided, from the evidence presented to it, make written findings of fact in a formal resolution of the planning commission, which findings of fact support the standards set forth above (in the case where a conditional use permit is granted), or which findings of fact show that the evidence does not support the standards (in the case where a conditional use permit is not granted). Such resolutions shall be permanently retained by the planning commission.
6. Public Hearing and Determination. After the planning official has duly forwarded the completed application to the planning commission, the planning commission shall study it and shall, within thirty (30) days after the receipt of such application, hold a public hearing whereat it may receive evidence pertinent to the granting or denial of such application according to the standards set forth above. If, at the hearing, the planning commission determines that it needs additional information, it may recess the hearing for a period of not more than thirty (30) days, during which time it shall procure or receive such additional information; provided, however, that before it so recesses, it must then and there announce the time and place at which the hearing will be resumed. Within thirty (30) days after the completion of the hearing, the planning commission shall, in a formal written resolution of the commission, either grant or deny the application, and the planning commission shall make its findings of fact a part thereof in the manner provided above.
7. Public Hearing – Notification and Publication.
a. The planning commission shall hold a public hearing on conditional use permit applications. Public notice may be given in a newspaper of general circulation in the municipality. The notice shall generally describe the conditional use sought. Notice shall also be posted at two (2) public places within the municipality. The clerk of the planning commission shall also mail a copy of the notice to owners of property, as follows:
(i) Notice by first class mail to owners of property located within three hundred feet (300') from any point on the outside perimeter of the property for which a conditional use permit has been requested; and
(ii) The owner or owners of the property for which the conditional use permit has been requested. Such notifications are complete upon publication and upon mailing.
b. Such notification shall contain, but not be limited to, the following information:
(i) For land within an area where street addresses are available, a legal description of the property and a street address;
(ii) For land outside an area where street addresses are available, a legal description, U.S. survey and lot number, and the approximate number of yards or miles from a generally known point of reference (landmark, building, etc.).
8. Civil Fines.
a. Failure to comply with the terms and conditions of any approved conditional use permit shall be considered a violation of the provisions of this chapter.
b. For each and every violation of any terms or conditions of an approved conditional use permit, the owner, agent, or contractor of a building or premises where such violations have been committed or exist, or any other person who maintains any building or premises in which any violation exists, shall be subject to a civil fine, established by resolution. Each and every day that such violation continues shall be deemed a separate and distinct violation of this chapter.
9. Revocation and Cancellation of Permit.
a. Any conditional use permit granted under this section may be revoked and canceled by the planning commission for failure to comply with the conditions of the conditional use permit. Before taking any action toward revoking such permit the planning commission shall first give the owner of the property upon which the conditional use is authorized twenty (20) days’ written notice, by prepaid certified U.S. mail or hand delivery, in advance of the date of hearing, of the subject of the hearing, and of the date, time and place of the hearing. This notice is complete upon mailing or hand delivery. The planning commission shall thereafter hold the hearing at the time and place set forth in the notice. The planning commission may conduct more than one (1) hearing in its discretion before concluding the hearing process.
b. The permittee may, at the hearing, present evidence on his own behalf, and may cross-examine witnesses. After the planning commission has concluded the hearing, the planning commission shall make written findings of fact from the evidence presented to it at the hearing supporting the conclusion that the permittee has failed to comply with the conditions of the conditional use permit (in cases where the permit is revoked), or that the permittee has not failed to comply with the conditions of the conditional use permit (in cases where the permit is not revoked) within thirty (30) days, unless otherwise extended by the planning commission. These findings shall be in a formal written resolution of the planning commission, and shall be retained permanently by the planning commission as part of its official records. In all revocation proceedings, the burden of proof is upon the planning commission.
c. After the conditional use permit has been revoked, the permittee shall thereafter immediately discontinue the use of the property for which the permit had originally been granted. If, after a conditional use permit has been revoked, the permittee does not immediately discontinue the use of the property for which the permit had originally been granted, a civil penalty not to exceed three hundred dollars ($300.00) for each day of continuing violation may be imposed. In addition, the planning commission may apply to the superior court for an injunction to restrain the former permittee from using such land for the purposes previously authorized in the permit.
d. In the event, however, that the permittee duly appeals the revocation of the permit to the board of adjustment, such appeal stays enforcement proceedings unless the board or a court issues an enforcement order based on a certificate of imminent peril to life or property made by the planning commission or a court.
10. Recording. The planning commission shall cause to be recorded with the district recorder for Skagway, all conditional use permits granted by the planning commission. It shall also cause to be recorded all resolutions of the commission revoking or modifying any conditional use permit. Subsequent owners of property subject to a conditional use permit succeed to the benefits and limitations of the original permit holder.
11. Duration of Conditional Use Permit. A conditional use permit expires eighteen (18) months after the date it was granted, unless a permit issued has been put into use and/or construction has been started and diligently continued to completion. Where unusual circumstances may prevent compliance with the time requirements for start of construction, the planning commission may, upon written request by the affected party, extend, by resolution, the time for required start of construction an additional sixty (60) days, provided the request is filed with the planning commission prior to the expiration of the one (1) year. Excavation is not considered to be construction for the purposes of enforcing this section.
12. Modification of Permit. The terms of a conditional use permit may be modified by new or revised conditions, which may be more or less restrictive than those contained in the permit. The procedure for such modifications may be initiated either by the property owner to whom the permit is granted or the planning commission if:
a. An original permit condition had a timing requirement that has been exceeded, violated, or expired; or
b. A condition in the original permit has not been complied with.
C. Notification and hearing are required as provided under subsections (B)(2), (6) and (7) of this section. In passing upon such modifications, the commission shall, after notice and hearing, from the evidence presented to it, make written findings of fact in a formal resolution of the commission, which findings either support the modifications or do not support the modifications within thirty (30) days, unless otherwise extended by the planning commission. In making a determination, the commission shall follow the guidelines pertaining to the granting of conditional use permits as set forth above. In all modification proceedings, the burden of proof shall be upon the initiating party.
(Ord. 17-10, Amended, 07/20/2017; Ord. 12-11, Amended, 05/17/2012; Ord. 2002-02, Amended, 02/07/2002; Ord. 99-17, Amended, 07/01/1999; Ord. 98-05, Amended, 04/23/1998; Ord. 90-15, Amended, 05/31/1990; Ord. 88-01, Amended, 01/07/1988; Ord. 86-11, Amended, 02/20/1986; Ord. 84-26, Repealed & Replaced, 11/08/1984)
19.04.070 Board of Appeals.
A. The borough assembly is the board of appeals. The board of appeals shall hear and decide:
1. Appeals regarding alleged errors in enforcement of zoning regulations and building codes;
2. Appeals from decisions of the planning commission on requests for conditional uses;
3. Appeals from the decision of the planning commission on requests for variances from the terms of the zoning regulations which are not contrary to the public interest, when a literal enforcement would deprive a property owner of rights commonly enjoyed by other properties in the same district;
4. Appeals from decisions of the historic district commission, as set forth in SMC 19.12.170(B).
B. A variance shall not be granted because of special conditions caused by actions of the person seeking relief, or for reasons of pecuniary hardship or inconvenience.
C. A variance shall not be granted which will permit a land use in a district in which that use is prohibited.
D. In exercising the above-mentioned powers, the board of appeals may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination, and to that end shall have all powers of the body from whom the appeal is taken.
E. Procedure of the Board of Appeals.
1. Appeals to the borough assembly of decisions of the historic district commission shall follow the procedure set forth in SMC 19.12.170(B).
2. Meetings of the board are held at the call of the presiding officer. Meetings and hearings of the board shall be open to the public, and the board shall keep minutes of its proceedings showing its decision, the reasons for its decision, and the vote of each member upon each question. Such minutes shall be public records.
3. Any interested party, including but not limited to a municipal official, may file with the board of appeals a notice of appeal, specifying in detail the basis for appeal. Only such grounds for appeal as specified in detail in the notice of appeal shall be considered. The borough clerk is the clerk of the board of appeals. All such appeals shall be filed in writing with the clerk of the board of appeals within ten (10) days of the date of the error, the decision, or the adoption of the resolution of the planning commission granting or denying the application for a conditional use permit or variance. Any purported appeals filed after ten (10) days shall not be considered by the board of appeals. If the final day to file an appeal falls on a week-end (Saturday or Sunday) or a holiday, the final day to file an appeal shall be the next working day of the week.
4. Upon such notice of appeal having been duly filed, the borough clerk shall send a certified copy to the zoning official and the planning commission, together with a written request for all records and transcripts, including the written decision and/or resolution of the planning commission, granting or denying the application. The zoning official and planning commission clerk shall, within twenty (20) days after having received the certified copy of the appeal and request, certify and deliver such records, transcripts and documents to the clerk of the board of appeals.
5. An appeal to the board stays enforcement proceedings unless the board or a court issues an enforcement order based on a certificate of imminent peril to life or property made by the enforcement officer.
6. The board of appeals shall hear and decide appeals de novo, and shall consider all records, transcripts and documents certified to it by the zoning official and the planning commission clerk. The board of appeals shall commence a public hearing on all appeals not later than thirty (30) days following the date the certified record, as specified in subsection 3 above, is delivered to the clerk of the board of appeals; provided, however, the date of commencement of the hearing may be continued for a period not to exceed an aggregate total of sixty (60) additional days, as follows:
a. By the clerk, upon the clerk’s determination there is a lack of a quorum, or upon receipt by the clerk of a written request from the appellant not less than five (5) days prior to the scheduled hearing;
b. By the board, for purposes of securing additional information, or upon written request for a continuance by the appellant, or for other reasons.
7. At least seven (7) days’ notice of the time and place of the public hearing shall be published in a newspaper of general circulation in the borough, and posted in two (2) public places in the borough. In addition, at least seven (7) days’ written notice of the time and place of the hearing shall be given to the appellant(s) and affected property owners, as such are determined within this title.
8. The board of appeals, after having received and considered the appeal, the certified records, transcripts and documents, and duly held a public hearing on the appeal, shall render a decision within sixty days, unless otherwise extended by the board of appeals in its discretion. The decisions of the board of appeals shall be by motion setting forth the reasons for the motion, and the vote shall be taken by "yes" and "no," which shall be permanently entered on the record of the proceedings. The weighted vote may not be used. Pursuant to Chapter 3.01.065, four affirmative votes are required to adopt any motion. A motion to uphold the decision of the official or planning commission that does not pass with four affirmative votes does not reverse the decision of the official or planning commission absent further motion by the board of appeals to reverse the decision in whole or in part or to otherwise modify the decision.
9. The adoption of the motion constitutes the final decision of the board of appeals, and the date of the adoption of the motion constitutes the date of the final decision of the board of appeals. The clerk of the board of appeals shall, not later than ten (10) days of the date of the final decision, certify the motion to the zoning official, planning commission clerk, and planning commission. In addition, a certified copy of the motion shall immediately be mailed to the appellant(s) by certified mail, return receipt requested or hand delivered. The appellant shall be informed of his further right of appeal as set forth in subsection F below.
10. If the board of appeals fails, within thirty (30) days after the date of the close of the hearing on the appeal, to pass a motion with four affirmative votes to reverse, affirm, modify or remand the decision of the administrative official or planning commission, the decision of the administrative official or planning commission shall be deemed to be upheld and affirmed.
F. Judicial Review. A party to the appeal to the board of appeals may appeal an action of the board of appeals to the Superior Court under the Alaska Court Rules 601-602 of the Rules of Appellate Procedure.
(Ord. 13-08, Amended, 04/04/2013; Ord. 12-11, Amended, 05/17/2012; Ord. 08-21, Amended, 11/06/2008; Ord. 84-26, Repealed & Replaced, 11/08/1984)
19.04.080 Amendments.
A. Intent. Whenever the public necessity, convenience or general welfare requires, the borough assembly may, under the following procedure and by ordinance, amend the zoning map or other portions of the zoning regulations.
B. Procedure for Zoning Amendments.
1. A zoning regulation amendment including a change which would result in a change of zone regarding a particular parcel or parcels of real property, may be initiated by:
a. The borough assembly on its own motion;
b. The planning commission on its own motion;
c. Any department or agency of the municipality;
d. Any individual, corporation or agency, other than those listed above, subject to the following conditions:
(i) For an amendment to rezone a specific parcel or parcels of real property: by petition signed by the owners of not less than seventy-five percent (75%) of the area of property proposed for rezoning, as shown on the last equalized assessment roll, or such other verification of ownership acceptable to the designated planning official. In addition to the necessary signatures, the petition shall contain:
(A) A legal description of the property involved,
(B) Reasons for the proposed change, and a statement describing the effect of the proposed change on the objectives of the comprehensive plan,
(C) Upon recommendation of the planning commission, the borough assembly shall by resolution establish a fee schedule to cover the costs of legal advertisement, mailed notification, and other fees, if any. The fees must be filed with the petition. Upon written request by the applicant, the application may be withdrawn, the fee may be refunded provided that the clerk of the planning commission has not mailed notice to surrounding property owners and prior to the final date of public notification;
(ii) For an amendment to the text of the zoning regulations other than in paragraph (i) above: by petition of any owner of real property within the municipality.
2. Any request or petition for an amendment of the zoning regulations shall be submitted in writing to the planning commission through the designated planning official.
3. Planning Commission – Public Hearing, Notification and Publication. Before making any recommendation on a proposed amendment of the zoning regulations, and within forty-five (45) days of the initiation of the change, the planning commission shall hold a public hearing thereon. Public notice shall be given in a newspaper of general circulation in the municipality, stating the date, time, place and purpose of the hearing, and shall be posted in two (2) public places in the municipality. The notice shall generally describe the proposed amendment to the zoning regulations. The notice shall be published at least five (5) business days prior to the date of the hearing. In the case of an amendment to rezone a specific parcel or parcels of real property, the clerk of the planning commission shall mail a copy of the notice to owners of property as shown on the most current assessment records, or hand deliver, as follows:
a. Owners of property located within three hundred feet (300’) from any point on the outside perimeter of the property for which the rezone has been requested; and
b. The owner or owners of the property for which the rezone has been requested. Such notifications are complete upon publication and mailing.
4. The planning commission shall study any request or petition for amendment to determine:
a. The need and justification for any proposed change of the zoning regulations or the zoning map;
b. The effect of a rezone, if any, on the property and on surrounding properties;
c. The amount of undeveloped land in the general area affected by an amendment to the regulations or zoning map;
d. The relationship of the proposed amendment to the comprehensive plan, with appropriate consideration as to whether the proposed change will further the purposes of the zoning regulations and the comprehensive plan.
5. The planning commission may recommend, and the borough assembly may make modifications to, any proposed or recommended amendment, provided that such change in the amendment would be in the public interest; and provided, further, that such modification shall not rezone any property not included in the advertised proposal, and shall not be less restrictive zoning than applied for.
6. Within seven (7) days after the planning commission has acted on a proposed amendment of the zoning regulations in accordance with the foregoing provisions, a report and recommendation shall be submitted to the borough clerk. Such recommendation of the planning commission shall be advisory only, and shall not be binding on the borough assembly.
7. Public Hearing, Notification and Publication. Before the borough assembly may take any action on the planning commission recommendation, a public hearing shall be held, at which time all interested parties shall have an opportunity to be heard. The public hearing shall be held at the first regular meeting allowing time for publication following transmittal of the report and recommendation from the planning commission. Notification shall be as set forth in paragraph 3 above. Publication of the notice of public hearing before the borough assembly shall be by posting at the Public Library, Post Office, municipal offices and on the municipal website.
8. Before the planning commission recommendation for amendment to the zoning regulations is presented to the borough assembly, the borough clerk shall cause an ordinance to be prepared, setting forth the details of the proposed amendment. Such ordinance shall be available for introduction at the first regular meeting of the borough assembly following submission of the report from the planning commission.
9. An ordinance resulting in an amendment of the zoning map shall identify by legal description the area to be rezoned. Amendments to the official zoning map shall be made by the borough manager or designated zoning official. Such official shall accomplish the amendment by making an overlay to the zone or part of the zone amended by ordinance, color the same according to the legend on the map, and permanently and neatly affix it to the official zoning map. The designated official shall accomplish the affixing thereof in the presence of the borough clerk, and thereafter shall, immediately following the effective date of the amending ordinance, make the following certification on the original of the amending ordinance:
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I, _____________, for the Municipality of Skagway, hereby certify that on this ____ day of ____, 20___, pursuant to the provisions of this ordinance adopting the Official Zoning Map, I amended the Official Zoning Map in the manner and to the extent directed and authorized by amending Ordinance No. __________, which rezone certain property therein more particularly described from ______________ to ______________. |
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(Title) |
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Subscribed and sworn to before me and witnessed by me, a Notary Public in and for the State of Alaska, on this ________ day of _______________, 20____. |
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Notary Public for Alaska: ___________ |
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My Commission Expires: ___________ |
(Ord. 12-11, Amended, 05/17/2012; Ord. 05-15, Amended, 07/21/2005; Ord. 84-26, Repealed & Replaced, 11/08/1984)
19.04.090 Administration, enforcement and penalties.
A. Administrative Official. An administrative official designated by the borough assembly shall administer and enforce this title. The official may be provided with the assistance of such other persons as the borough assembly deems necessary. If the administrative official finds that any of the provisions of this title are being violated, he shall notify with a notice of violation or written warning the person responsible for such violations, indicating the nature of the violation, and ordering the action necessary to correct it. He shall order discontinuance of illegal uses of land, buildings or structures; removal of illegal buildings or structures, or of additions, alterations or structural changes thereto; discontinuance of any illegal work being done; or shall take any other action authorized by this title to insure compliance with or to prevent violation of its provisions, consistent with Section 19.04.050 on preexisting nonconforming uses.
B. Permits and Inspection--Permits Required.
1. No person, firm or corporation shall erect, construct, alter, enlarge, move, improve or convert any building in the municipality, or cause the same to be done, without obtaining a separate permit for each structure from the zoning official. The zoning official shall maintain a record of all permits, and copies shall be furnished upon request to any person. Failure to obtain a permit shall be a violation of this chapter, and punishable under this section.
2. All applications for permits shall be accompanied by plans in duplicate, drawn to scale, showing the actual dimensions and shape of the lot to be built upon; the exact sizes and location on the lot of buildings already existing, if any; and the location and dimensions of the proposed building or alteration. The application shall include such other information as lawfully may be required by the zoning official, including existing or proposed building or alteration; existing or proposed uses of the building and land; the number of families, housekeeping units or rental units the building is designed to accommodate; conditions existing on the lot; and such other matters as may be necessary to determine conformance with and provide for the enforcement of this title.
3. The zoning official shall render his decision within thirty (30) business days of the filing of the application of a permit. However, this time limit may be extended by common consent and agreement signed by both the applicant and the zoning official. One (1) copy of the plans shall be returned to the applicant by the zoning official after he shall have either attached a permit, or marked the plans as disapproved, and attested to the same by his signature on such copy. The second copy of the plans, similarly marked, shall be retained by the zoning official.
C. Complaints Regarding Violations.
1. Whenever a violation appears to be occurring or occurred, any person may file a complaint. All such complaints shall be brought to the attention of the community service officer, who shall record such complaints and investigate.
2. The following violations of 19.08, 19.10 and 19.12 are exempt from subsection (C)(2) of this section:
a. Banners on the exterior of a building.
b. Paper or plastic signs on the exterior of a building. These include paper or plastic signs on either side of out-swinging doors.
c. Exterior display of merchandise. This includes merchandise in doorways that is placed so that it extends past the exterior door trim.
d. Balloons or wind devices.
e. Any sign erected that the historic district commission has reviewed and denied.
f. Artificial plants, shrubs or flowers.
g. "End of Season" sale signs displayed prior to Labor Day.
h. Dry-erase boards.
i. Internally lighted signs.
j. Dolls or mannequins on public property.
k. Portable signs, including sandwich signs on public property.
l. Off-premises signs.
3. Violations specified in subsection (C)(2) of this section shall be subject to immediate citation.
4. The fine for violations of subsection (C)(2) of this section shall be established by resolution. The violation will be cited each day and continues until the violation is remedied.
D. Penalties for Violations.
1. For any and every violation of the provisions of this title, the owner, agent or contractor of a building or premises where such violations have been committed or exist, or any other person who maintains any building or premises in which any violation exists, shall incur a civil penalty, established by resolution, for each day of continuing violation. Each and every day that such violation continues shall be deemed a separate and distinct violation. Any building or structure set up, erected, built, moved or maintained, or any use of property contrary to the provisions of this title, shall be declared unlawful and a public nuisance, and the borough manager shall immediately cause to be commenced an action for the removal thereof, in the manner provided by law, and shall apply to such court or courts as may have jurisdiction to remove such buildings, structure or use. All remedies provided herein shall be cumulative and not exclusive.
2. Failure to contact the Skagway police department within five (5) days of the date of notice of violation and arrange a payment schedule for the fine acceptable to the police department, or to pay the fine for the violation within five (5) days of the date of the notice of violation, or to file an appeal of a notice of violation within ten (10) days of the date of the notice of violation, will result in an additional fee in the amount of the civil fine.
3. Chapters 19.08, 19.10 and 19.12 Regulating Signs and Structures Within the Historic District.
a. Any changes to any structure or sign within the historic district without a valid and approved permit shall be subject to a civil fine, established by resolution, per day from the day the change is initiated until the date final approval is given or until all changes are restored to the original. Each and every day that such violation continues shall be deemed a separate and distinct violation.
b. Any structures erected which vary from the approved permit will be required to be corrected within thirty (30) days, or shall be subject to a civil fine, established by resolution, per day from the date of occupancy to the date of final approval. Each and every day that such violation continues shall be deemed a separate and distinct violation.
c. Any structures within the historic district removed or demolished without an approved permit shall be subject to a civil fine, established by resolution, per day from the time of demolition to the date of final approval. Each and every day that such violation continues shall be deemed a separate and distinct violation.
4. Chapters 19.08, 19.10 and 19.12 Regulating Signs and Structures Within the Historic District.
a. Any signs erected within the historic district from the date of passage, August 5, 1999, without a valid and approved permit shall be subject to a civil fine, established by resolution, per day from the day raised through the date final approval is given. Each and every day that such violation continues shall be deemed a separate and distinct violation.
b. Any signs erected within the historic district from the date of passage, August 5, 1999, which vary from the approved permit must be corrected within thirty (30) days from date of notice, and shall be subject to a civil fine, established by resolution, per day after that period until corrected. Each and every day that such violation continues shall be deemed a separate and distinct violation.
c. Any signs which vary from the approved permit, enter the appeal process and are denied must be immediately removed or masked from view until corrected.
E. Appeals to the Board of Appeals.
1. Any person or persons aggrieved by a decision of the administrative official or planning commission, including but not limited to a municipal official, may file with the board of appeals an appeal in writing stating detailed and specific allegations of error including reference to applicable provisions of the Skagway Municipal Code; and shall also include a statement of whether the action should be reversed, modified, remanded for further proceedings, or any other desired relief. All such appeals shall be filed with the borough clerk within ten (10) days of the date of such decision. If the final day to file an appeal falls on a weekend (Saturday or Sunday) or a borough-designated holiday, the final day to file an appeal shall be the next working day of the week. Any purported appeals filed after ten (10) days shall not be considered by the board of appeals.
2. All appeals to the board of appeals shall follow, to the extent applicable, the procedure as set forth in Section 19.04.070.
(Ord. 14-06, Amended, 04/17/2014; Ord. 12-11, Amended, 05/17/2012; Ord. 09-01, Amended, 03/05/2009; Ord. 05-03, Amended, 02/17/2005; Ord. 99-20, Amended, 08/05/1999; Ord. 90-15, Amended, 05/31/1990; Ord. 84-26, Repealed & Replaced, 11/08/1984)
19.04.100 Administrative appeal for civil fines.
A. Right to Appeal and Time for Appeal. Any persons who have been issued a notice of violation may appeal the notice of violation by filing an appeal with the borough manager within ten (10) days of the date of the notice of violation. The borough manager shall prepare appeal forms which the appellant may use.
B. Hearing Officer. The borough manager or such person(s) as the borough manager may designate shall serve as hearing officer for notice of violation appeals and shall have authority to decide such appeals.
C. Contents of Appeal. An appeal must be in writing and contain the following information:
1. Name and mailing address of the appellant;
2. Number or other sufficient identification of the notice of violation;
3. Statement of the reasons for the appeal;
4. Any facts, documents, photographs, witness statements, or other evidence supporting the appeal; and
5. Statement as to whether the appellant requests a hearing before a hearing officer, or whether the appeal can be decided without a hearing. If the appellant waives hearing, the hearing officer may decide the appeal based on the written statements of the appellant, the issuing officers and any witnesses as contained in the notice or other written reports.
D. Administrative Hearing Procedures.
1. Date of Hearing. Unless otherwise agreed to by the appellant and the hearing officer, a hearing requested under this section shall be held no later than fifteen (15) days from the date the written notice of appeal is filed with the borough manager.
2. Procedure. The hearing shall be conducted informally and may be governed by such rules as the hearing officer may choose to establish, except that:
a. Parties may appear in person or through counsel;
b. Parties may present witnesses and evidence on their own behalf and witnesses may be cross-examined;
c. The hearing is not governed by the formal rules of evidence. The hearing officer may consider evidence that the officer reasonably deems to be both relevant and material to the contested issues;
d. All hearings shall be open to the public;
e. The hearing shall be memorialized by electronic recording or stenographic record;
f. Failure of the appellant to appear at a hearing requested by the appellant shall waive all right to a hearing and shall render the amount of the fine due and owing.
3. Scope of Review. The hearing officer’s decision shall be based on the law and facts applicable to the case. The hearing officer may exercise independent judgment and reasonable discretion, applied in a consistent manner, in deciding appeals and may affirm, modify, or dismiss the notice of violation.
4. Decision. No later than ten (10) days following the hearing, the hearing officer shall issue a written decision setting out the hearing officer’s findings and conclusions so as to provide a clear understanding of the reasons for the decision entered. The decision should also include the following statement: "This is the final decision of the Municipality of Skagway and a party disputing this decision has thirty (30) days from the date this decision was mailed or distributed to file an appeal with the Superior Court for the State of Alaska, First Judicial District at Juneau, Alaska, in accordance with the Alaska Rules of Appellate Procedure." The decision shall be mailed or otherwise distributed to all parties to the appeal.
5. Judicial Appeal. The decision of the hearing officer may be appealed to the Superior Court for the State of Alaska, First Judicial District at Juneau, Alaska, in accordance with the Alaska Rules of Appellate Procedure.
(Ord. 14-06, Added, 04/17/2014)