(A) Authorization. The Planning Commission, after public hearings, may vary or modify requirements of this chapter where strict application would cause an undue or unnecessary hardship. Variances will be dimensional in nature and may be limited to requirements governing yards, lot dimensions and coverage, heights, and parking areas. In granting a variance, the Planning Commission may attach conditions which it finds necessary to protect the best interests of the surrounding property or vicinity, and to otherwise achieve the purpose of this chapter. If a dimensional variance of ten percent or less of a standard set forth in this chapter is requested, the Director of Planning may grant such a variance if he finds that strict application of the chapter's standard may cause undue hardship. The Director of Planning shall report all such dimensional variances that he grants as a Planning Determination to the Planning Commission. If the Director of Planning denies a request for a dimensional variance of ten percent or less, that decision may be appealed pursuant to § 8.12.220(B).
(B) Procedure for taking action on a variance application. The procedure for taking action on a variance application shall be as follows:
(1) Application. A written application for a variance shall be filed with the Department of Planning. Upon filing an application for a variance with the Department of Planning by the landowner or their authorized agent on forms prescribed, the applicant shall be informed on the time and place of the next regular meeting at which the application for a variance will be considered; and
(2) Submittal/timing.
(a) The application must be received at least 22 days prior to the next regular meeting of the Planning Commission.
(b) The Department of Planning will provide an examination of the City of Unalaska Real Property Tax Roll indicating that the signatures of landowner(s) on the application form are in fact the latest owner(s) of record to be granted the variance.
(C) Public hearing. Upon the filing of any such application, the Planning Commission shall hold at least one public hearing on the application. Notice of the Public Hearing shall be given not less than 10 days prior to the public hearing in the following manner:
(1) The Department of Planning will mail the notice of public hearing to all landowners of record within 300 feet of the proposed variance area as shown on the City of Unalaska Real Property Tax Roll; and
(2) The Department of Planning will post at least two copies of this notice, printed or written, in a conspicuous place not less than 10 days prior to the date of the hearing.
(D) Action of the Planning Commission.
(1) The Planning Commission shall make its decision concerning a variance application within 30 days after the public hearing is closed, unless the hearing is continued.
(2) Approval of an application for a variance will be specifically tied to the site plan submitted with the written application, unless otherwise modified and noted by the Planning Commission.
(3) The Planning Commission shall cause written notification of its action to be mailed to the applicant within 10 days after the decision has been rendered. Its decision shall be final unless appealed to the City Council.
(E) Approval. The Planning Commission may approve an application for a variance by finding, that the request conforms to AS 29.40.040 land use regulations, or any subsequent amendments thereto and:
(1) Special conditions that require the variance are not caused by the person seeking the variance and that exceptional or extraordinary circumstances apply to the property which do not apply generally to other properties in the same zoning district, and result from lot size, shape, topography, or other circumstances over which the applicant has no control. An argument of “financial hardship” when defined as causing a developer to spend more than he is willing to in order to conform, is not an over-riding factor in the granting of a variance;
(2) That the variance is necessary for the preservation of a property right of the applicant substantially the same as is possessed by other landowners in the same zoning district;
(3) That the granting of the variance will not materially affect the health or safety of persons residing or working in the neighborhood and will not be materially detrimental to the public welfare or injurious to property or improvements in the neighborhood; and
(4) That the variance will not be materially detrimental to the intent of this chapter, or to properties in the same zoning district in which the property is located, or otherwise conflict with the objectives of the Comprehensive Plan and the variance requested is the minimum variance which would alleviate the hardship.
(F) Appeals. A person aggrieved by the decision of the Planning Commission may make written request for a hearing before the City Council to appeal such decision. For purposes of this subsection, an aggrieved person means the applicant or landowner within the area involved or within 300 feet of the exterior boundaries of the area involved. Such request shall contain reference to the specific decision appealed and shall be delivered to the City Clerk within ten working days from such ruling. Upon receipt of any such request, the City Council will set a date for a public hearing to consider the Planning Commission's decision and objections thereto. Notice of the Public Hearing shall be given not less than ten (10) days prior to the public hearing in the following manner:
(1) The Department of Planning will mail the notice of public hearing to all landowners of record within 300 feet of the proposed variance area as shown on the City of Unalaska Real Property Tax Roll; and
(2) The City Clerk will post at least two copies of this notice, printed or written, in a conspicuous place not less than 10 days prior to the date of the hearing.
(G) Action of the City Council. At the public hearing, the City Council may uphold the action of the Planning Commission, reverse the action of the Planning Commission, or modify the action of the Planning Commission.
(H) Decision of the City Council. The City Council shall provide findings of fact and conclusions of law in accordance with its decision on appeal. These findings of fact and conclusions of law shall be issued within 15 working days after the final hearing on appeal. The decision of the City Council shall become final and effective immediately upon the issuance of the findings of fact and conclusions of law. No permits shall be issued concerning the property in question until the decision becomes final. A decision of the City Council may be appealed to the Superior Court within thirty (30) days after the decision becomes final.
(I) Reapplication. No request for a variance shall be considered by the Planning Commission within the twelve-month period immediately following a previous denial of such request, except that the Director of Planning may consent to a new hearing, if in the opinion of the Director of Planning new evidence or a change of circumstances warrant it.
(J) Time limit for a variance. Each variance authorized under the provisions of this chapter which is not actually established or for which the actual construction commenced on the buildings or structures involved within one year from the date of the decision of the Planning Commission, will be null and void. In the event construction work is involved, it must actually commence within the stated period and must be diligently pursued to completion. Provided further, when any use or land, building, structure, or premises established by variance has been discontinued for a period of one year, it shall be unlawful to use said land or building or premises again for such use unless a subsequent variance is again authorized and issued therefore. Permits shall require new hearings with the Planning Commission.
(Ord. No. 2001-04, passed 5-8-01; Am. Ord. 2005-09, passed 4-26-05; Am. Ord. 2014-19, passed 10-28-14)