Agenda - Planning Commission - 12/06/2018

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November 10, 2018 I Volume 12 I Issue 21 Zoning Bulletin The ZBA concluded that standards one, two, three, and seven were not substantially met by the Corkerys' variance application. The Board found that standard one was not met because "[t]he physical condition of the land [did] not contribute to the need for a variance from lot coverage." The Board found that standard two was not met because, "even if the lot was oddly shaped and sloping, these physical circum- stances did 'not necessitate increasing the building footprint over the maximum allowed.' " The Board found that standard seven was not satis- fied because the Corkerys "could make reasonable use of the property without the variance." The Corkerys appealed the /HA's denial of their variance application to the superior court. The Corkerys raised three primary arguments on appeal: (1) "the Board incorrectly interpreted the variance provision to require compliance with all seven standards, rather than just a substantial number of them"; (2) "their existing home constituted an exceptional or extraordinary physical circumstance necessitating a variance"; and (3) "the Municipality was barred by the doctrine of laches from refusing to grant the variance." The superior court rejected each of the Corkerys' arguments, and af- firmed the ZBA's decision to deny the variance. The Corkerys again appealed, reasserting their arguments. DECISION: Judgment of superior court affirmed. The Supreme Court of Alaska first held that the Corkerys could not invoke the doctrine of laches to obtain the affirmative relief of a variance. The court explained that the doctrine of laches "is an equitable defense available 'when a party delays asserting a claim for an unconscionable period.' " The court further explained that in order for laches to bar a claim, two elements must be shown: (1) the plaintiff (i.e., the party bring- ing the claim) unreasonably delayed seeking relief, and (2) this delay has resulted in "prejudice to the defendant." Here, the court held that laches was not available to the Corkerys because here the Corkerys were the plaintiffs and were not defendants in a zoning enforcement action. The court found no basis for allowing the Corkerys to invoke an equita- ble defense (that is typically asserted by a defendant) to compel the Municipality to grant a variance "when the Municipality has not and will not initiate a zoning enforcement action." Next, the court rejected the Corkerys' argument that the language of the municipal variance provision requiring zoning applications "substan- tially meet[ ]" seven standards only required compliance with a substantial number of the seven standards. Rather, looking at the language of the provision, as well as other related sections of the Municipality's code, and finding the seven factors partially interdepen- dent, the ZBA held that the variance provision required an applicant to substantially meet each of the seven variance standards in order for the Board to grant a variance request. 8 © 2018 Thomson Reuters