Agenda - Planning Commission - 09/04/2014

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Zoning Bulletin August 10, 2014 I Volume 8 I Issue 15 i Shortly after he took possession of the property in 1988, Tweedy constructed a six- by eight- by 10-foot stairwell addition on the exterior of the house. In 1988, the Borough repealed Title 16 of its ordinance, which included the setback ordinance, and replaced it with Title 17. Effectively, the 75-foot setback requirement was moved from Title 16—MSBC 16.25.480 to Title 17— MSBC 17.55.020. Under both Title 16 and Title 17, construction completed prior to January 1, 1987 was exempt from the 75-foot setback requirement. In 2010, Tweedy applied with the Borough to purchase the Property. Because structures on the Property were located less than 75 feet from the shoreline, the sale required an exemption or variance from the Borough's setback requirement. The Borough Planning Director (the "BPD") determined that Tweedy's stairwell addition was unlawful and that the application could not be processed until Tweedy removed it. Tweedy appealed. The Borough's Board of Adjustment Appeals (the "Board") affirmed the BPD's decision. Tweedy appealed to the superior court, which also affirmed. Tweedy again appealed. Among other things, Tweedy argued that no shoreline -setback requirement prohibited the stairwell at the time it was constructed. He contended that MSBC 16.25.480 was a subdivision regulation that did not apply to his property because his land was subdivided before the ordinance was enacted. He further argued that because no shoreline setback ap- plied to his property when he constructed the stairwell, the current shoreline - setback requirement of MSBC 17.55.020 was improperly applied retroactively to his stairwell addition, and that this retroactive application violated substan- tive due process or was an unconstitutional taking. DECISION: Judgment of superior court affirmed. The Supreme Court of Alaska held that because the 75-foot setback applied to Tweedy's Property when he constructed the addition, the addition was unlawful when it was built and he was therefore not entitled to an exemption or variance. In so holding, the court rejected Tweedy's argument that the setback ordinance was a subdivision ordinance that did not apply to his Property. The court said that because Title 16 included ordinances that governed the use of land within subdivisions, it made "little sense to conclude that Title 16 governed only the process of subdividing land. The more logical interpretation [was] that ordinances within former Title 16 that regulated the process of subdividing land governed prospective applications to subdivide land, and or- dinances that regulated the use of subdivided land applied to all land within subdivisions, regardless of when the subdivision was created." Furthermore, said the court, "subdivision regulations and zoning ordinances are not mutually exclusive categories." In this case, whether one called it a zoning ordinance or a subdivision regulation, the court found it clear that former MSBC 16.25.480 governed how close to a body of water a property owner could build a stnicture on subdivided land. The court concluded that the shoreline -setback requirement in former MSBC 16.25.480 did apply to Tweedy's property when he constructed his stairwell, and thus that the stairwell was unlawful when it was constructed since Title 17 also prohibited expansion of nonconforming uses. © 2014 Thomson Reuters 9