City and Borough of Juneau, 155 South Seward Street, Juneau, Alaska 99801

STAFF REPORT FOR VAR2006-00024 - PDF

 CBJ Law Dept. Memo - Review of Juneau Access Project Plans

DATE:                      July 3, 2006

TO:                           Board of Adjustment

FROM:                     Dale Pernula, Director
                                Community Development Department

FILE NO.:                VAR2006-00024

PROPOSAL:          Variance to allow construction of the Juneau Access Road within 330 feet of 3 eagle nesting trees located on public property.

ATTACHMENT A  Variance Application
ATTACHMENT
B Development Permit Application
ATTACHMENT C  Plan and Profile, Sheet F16
ATTACHMENT D  Plan and Profile, Sheet F17
ATTACHMENT E  FEIS Appendix R, Bald Eagle Technical Report, Pages 21-22
ATTACHMENT F  Overview of Quantm System
ATTACHMENT G E-mail from DOT to CDD, with cost analysis, dated June 12, 2006
ATTACHMENT H  Table B-1, Bald Eagle Technical Report
ATTACHMENT I  Addendum Figuire 5
ATTACHMENT J  E-mail from Reuben Yost to Benjamin Lyman, dated June 5, 2006.

GENERAL INFORMATION

Applicant:      State of Alaska Department of Transportation & Public Facilities (DOT&PF)

Property Owner:     United States Forest Service (USFS)

Project Location:          Echo Cove to Sweeny Creek (23.4 miles)

Legal Description:        N/A

Parcel Code Number:     N/A

Site Size:         300 foot-wide right-of-way from Echo Cove to Sweeny Creek (23.4 miles).

Zoning:            RR  

Utilities:           None (some private utilities are present at the Kensington Mine)         

Access:            Water & Air (the proposed project would provide road access)

Existing Land Use:    Vacant, Kensington Mine under construction

Surrounding Land Use: 
North       - Tongass National Forest, Haines Borough
South     - Glacier Highway/Veterans Memorial Highway
East        - Tongass National Forest, Kensington Mine
West      - Lynn Canal

PROJECT TERMINOLOGY

There are several naming conventions, descriptive terms, and abbreviations used in this memorandum that require explanation.  These terms and conventions are used by the Alaska Department of Transportation and Public Facilities (DOT&PF) and/or the United States Fish and Wildlife Service (USFWS and USF&WS) in the Final Environmental Impact Statement for Juneau Access Improvements (FEIS), its supporting documents and addenda, and correspondence between City and Borough of Juneau (CBJ) Community Development Department (CDD) staff and DOT&PF/ USF&WS staff.

•       All eagle nest identification numbers in this memorandum are DOT&PF project numbers listed in the FEIS, unless noted otherwise.  USF&WS numbers are not used to identify eagle nests, as these numbers relate to nests within a particular United States Geological Survey (USGS) Quadrangle (quad) Map, and the numbers repeat when multiple quads are involved.

•       The USF&WS has identified the 330 foot buffer area around eagle nesting trees as the “primary buffer area” or the “primary zone.”  This terminology is used throughout this memorandum.

•       The development activities proposed within the 330 foot buffer areas around the subject eagle nesting trees include any or all of the following activities:  blasting, cutting, and filling slopes; clearing trees; drainage control system construction; and other road construction activities.  Particular activities may or may not be specified for a particular nest, but all development activities are treated equally under this variance review in terms of potential impacts to nests.  All such activities require approval of the requested variance in order to take place within the primary buffer area of any nest.

•       The proposed project is the construction of “Alternative 2B” identified in the FEIS.  Alternative 2B is the “Preferred Alternative.”  These terms are used interchangeably within this memorandum.

•       The Environmental Impact Statement (EIS) is a document required as part of the National Environmental Policy Act (NEPA).  The process of drafting the EIS is intended under NEPA to be an opportunity to collect information that will be used in choosing the “Preferred Alternative” from a range of alternatives, which must include a “No Action Alternative.”  The FEIS is the final document in the EIS process.

•       The DOT&PF proposes to construct the road in phases.  The segment of the road from Echo Cove to Sweeny Creek, shown in the project Plan and Profile sheets for Station 58+00 to Station 1295+00 (Sheets F1 through F48 of project NH-HPRL-093-3(33)), is referred to as “Phase I” in this memorandum.

PROJECT DESCRIPTION

The proposed project is described in the memorandum on CSP2006-00005.  The variance discussed in this memorandum would allow the construction of a road with cut and fill limits within 330 feet of 3 mapped bald eagle nests within the CBJ.

Nests not listed in the variance application may be discovered during the course of surveys conducted during road construction (see discussion below).  The applicant has asked for the variance to be in “general terms” that allow for nest setbacks that “change in the field” as the road alignment is surveyed each year.  This type of general review is contrary to the provisions of Title 49, the CBJ Land Use Code.  It should be noted that if the requested variance is granted, it is standard CDD policy to allow minor or incidental deviations from the approved variance specifications; as such deviations regularly occur in the field.

Several nests are shown in the Plan and Profile sheets as having construction activities within their primary buffer area, but are not listed in the variance application.  DOT&PF staff (Pat Kemp and Reuben Yost (DOT&PF), oral communication to Peter Freer and Ben Lyman (CDD) on June 7, 2006) have assured CDD staff that the encroachments shown in the Plan and Profile sheets for these nests will be avoided in the field.  These trees are listed below as specifically exempt from the subject variance in order to eliminate any potential for confusion over which nests are or are not included in the variance.  The applicant has assured CDD staff that small distances of five or so feet can be accommodated in all cases, and that construction shown within this margin of the 330 foot buffer will remain outside the buffer if no variance for an encroachment is granted. (Ibid.)

The variance considered in this memorandum is to the following requirement of Title 49, the Land Use Code.

              CBJ §49.70.310 Habitat.
                            (a)    Development in the following areas is prohibited:
                            (2)    Within 330 feet of an eagle nest on public land

The application for this variance request lists the following nests as the subject of this request:  No. 074, 076, and 119.

The attached Plan and Profile sheets for the proposed road show the location of each eagle nest for which a variance is sought between Glacier Highway and Sweeny Creek. 

Table B-1 (Attachment H), lists the nests (under “Project Nest No.”) with their respective distances from the construction zone with any comments regarding why the road is aligned within 330 feet of the nest (if applicable).  Please note that these measurements are not exact, as the project alignment has been changed since Table B-1 was drafted.  Nests subject to this variance request are marked with a tick on the left-hand margin.  According to DOT&PF staff, (Reuben Yost and Pat Kemp (DOT&PF), oral communication to Peter Freer and Ben Lyman (CDD) on June 7, 2006.) the primary utility of Table B-1 is in regard to the “Comments for Primary Zone Encroachments” column, where the reason for encroaching into the primary nest area is described for each such affected nest.

All of the nests listed in the variance application for which the variance application is complete are listed below with the relevant distance to construction activity, page of Table B-1, Addendum Figure 5, and Plan and Profile Sheet No. listed for reference.

Nest No. *

Ft to Construction

Table B-1 Page No.

Addendum Figure

Plan and Profile Sheet No.

076

44

1

5

F16

119

157

1

5

F16

074

104

1

5

F17

  Nests are listed in order from the south end of the project to the north end of the project within each table. 

The nests for which this variance is requested were all observed during helicopter surveys, as documented on page 57 of Appendix R to the FEIS.  The same page includes the following statement:

 

In summary, the scope of this variance request has been reduced from the original application for a number of reasons.  The primarily factor is that the initial phase of construction, being bid at this time, will only be to Sweeny Creek.  This will allow DOT/PF to complete a more detailed look at eagle nest trees in future phases.  There is a potential for some realignment of a portion of this roadway that could result in the reduction of the encroachment into the primary buffer area of the eagle nest trees.

It is to be expected, then, that additional nests within the 330 foot primary buffer area may be identified as construction of the Juneau Access Project progresses.  Any such currently un-identified nests are not addressed in the subject variance request, and any development within 330 feet of such nests will require approval of subsequent variance requests prior to commencement of construction activities within the primary nest area.

 

BACKGROUND

The background of this project is described in the memorandum on CSP2006-00005. 

The proposed project is the construction of a road along the eastern shore of Lynn Canal from the termination of Glacier Highway/Veterans Memorial Highway at Echo Cove to the proposed ferry terminal at the Katzehin River.  Due to topographical constraints, any road alignment not relying on tunnels that follows the eastern shore of Lynn Canal will be directly adjacent to many bald eagle nests, which are typically located along shorelines. 

 

“Bald eagles are common residents of the Lynn Canal region and are protected under the Bald and Golden Eagle Protection Act, as amended (16 U.S.C. §§ 668-668d)...A small percentage of bald eagle pairs build new nests in any given year but most pairs use an existing nest. Some nests are used every year while other nests are used periodically. Only 40 to 50 percent of available nests are actively used during any given year.  The Bald and Golden Eagle Protection Act applies to all nest sites, regardless of whether they are active or not in a particular year.  However, rules designed to protect nesting eagles from construction disturbance distinguish between active and inactive nests.”                                                          (FEIS Appendix R page 13 section 2)

It should be noted that CBJ §49.70.310(a)(2) does not distinguish between active and inactive nests on public property.  This prohibition against construction within 330 feet of an eagle nest on public property is required year-round, regardless of whether or not the nest is being used.

According to the FEIS, the proposed road alignment was designed in order to minimize impacts to bald eagle nesting sites.

“Construction along the alignments of Alternatives 2B and 3 would be staged; therefore, construction would not occur along the entire alignment in any one season.  In addition, not all eagle nests are actively used each year.  Construction would be timed to avoid nest tree areas during the nest occupation period, and to avoid active nests during the rearing season.  In specific locations, monitors may be used to allow construction during these periods if agreed to by USFWS.

 

“New bald eagle nests are built each year and some older nests may be destroyed each winter.  The locations of all nest trees within the construction zone would be surveyed each year prior to construction.  Site-specific mitigation would be the subject of ongoing consultations with the USFWS and would be agreed to on a case-by-case basis during design and construction.  A blasting plan would be developed in consultation with USFWS for areas where blasting would be required within 0.5 mile of active nests.”                                              (FEIS page 4-176)

The FEIS Appendix W, the Technical Report Addenda, states that for the proposed road alignment, “49 out of 92 nests (53 percent) could not be reasonably avoided by more than 330 feet.  Of these 49 nests, three are within 31 to 90 feet of the proposed slope limits, 20 are within 91 to 180 feet, and 8 are within 181 to 300 feet.”  These counts are for the entire road alignment from the end of Glacier Highway to the proposed Katzehin River ferry terminal.  As stated above under the Project Description section of this memorandum, only 3 of the 49 nests described above are subject to the requested variance and are under consideration for variances at this time.

The proposed project is identified as the Preferred Alternative, Alternative 2B, of the Juneau Access Project.  The FEIS for this project identifies four alternatives (No Action, 2B, 3, and 4), one of which has four sub-options (4A, 4B, 4C, and 4D). 

Generally, eagle nest variances are supported by staff if USF&WS staff is amenable to the requested relaxation and if negative impacts to eagles can be avoided by conditions on project timing, monitoring, and/or mitigation.

In regard to the cost of avoiding or minimizing encroachment of the eagle nest trees, mitigation, DOT/PF has had two studies completed as part of the project.  The 1997 DEIS calculated that avoiding nests would typically cost more than one million dollars per nest.  The results are shown in Attachment E.

In addition, a consultant for DOT&PF, Quantm, Ltd., (See Attachment F), reviewed the costs that would be incurred in avoiding eagle nest trees in the proposed alignment from Independence Creek extending twenty miles north.  Their estimate was the cost of avoiding the eagle trees in this stretch of roadway was 30 million dollars (Malcolm Menzies, oral communication to Dale Pernula (CDD) on June 28, 2006).

DOT&PF has done more detailed cost estimates for the three subject eagle nest trees at the request of CDD.   These estimates are for the option of tunneling which is discussed further in the analysis section (Attachment G).

It should be noted that the existing variance process is not adapted well to deal with habitat issues.  Although not directly addressing eagle nest trees, this deficiency is recognized in the Comprehensive Plan with the inclusion of the following implementing measure:

3.1.9: Amend the Land Use Code to include additional criteria in the grounds for variance standards that require an evaluation of impacts to habitat and water quality for variance requests from streamside and lakeshore setbacks, and to provide for mitigation when variances to stream or lakeshore setbacks are granted.

ANALYSIS

Variance Requirements

Under CBJ §49.20.250 where hardship and practical difficulties result from an extraordinary situation or unique physical feature affecting only a specific parcel of property or structures lawfully existing thereon and render it difficult to carry out the provisions of Title 49, the Board of Adjustment may grant a Variance in harmony with the general purpose and intent of Title 49. A Variance may vary any requirement or regulation of Title 49 concerning dimensional and other design standards, but not those concerning the use of land or structures, housing density, lot coverage, or those establishing construction standards. A Variance may be granted after the prescribed hearing and after the Board of Adjustment has determined:

1.           That the relaxation applied for or a lesser relaxation specified by the Board of Adjustment would give substantial relief to the owner of the property involved and be more consistent with justice to other property owners.

“Since the primary means of minimizing nest disturbance is to avoid the need for construction activities within 330 feet of nests (see Section 3.2.1), highway alignments were adjusted to avoid the primary zone around nests wherever feasible. However, realignments were constrained by a number of engineering and resource limitations, including the need for tunneling or running the highway along the beach, such that the alignments could not feasibly avoid all nests. The 1997 DEIS calculated how much it would cost to avoid these nests and the costs were typically more than one million dollars per nest.”                                                        (FEIS Appendix R pages 13-4 section 2.1)

The requested variance would allow construction of a road within 330 feet of 3 identified nests.  As noted above, the 1997 DEIS estimated the costs of completely avoiding the 330 foot primary buffer area for 10 eagle trees.  The results ranged of .7 million to seven million (Attachment E).  Assuming similar costs, the requested variance would save the applicant a minimum of $3 million.  However, the cost of avoiding the three specific sites may be considerably higher.

As noted earlier, we had the DOT&PF look at the three of the sites in more detail. The discussion in the “Comments for Primary Zone Encroachments” column in Table B-1 indicates that the encroachments into the buffer areas for nests No. 076, 119, and 074 result from the alignment being routed along a bench between a cliff and a rock knob.  This appears to be an ideal situation in which to tunnel, and the only feasible solution, to avoid encroachments into the nest areas.  The results of that additional review are shown in Attachment G.  The estimated cost by DOT/PF ranges from 26 to 68 million dollars.

Clearly, approval of these variance requests would give the applicant substantial relief.

In addition, because of the unique/extreme topography of these sites there does not appear to be an option for lesser relaxation of the encroachments being proposed for these three eagle nest trees.  DOT/PF has made the statement that they have aligned the road to be as far from the nests as practical, and any effort to locate the road farther from these nests would result in significantly higher construction costs/larger cuts/more visual impacts.

Yes.       Staff finds that Criterion 1 is met for nests No. 076, 119, and 074.  A grant of the variance would provide substantial relief to the applicant.  Also, there does not appear to be a potential for a lesser relief of the proposed encroachments (other than tunneling assessed in Criterion 5, below).  In addition, there do not appear to be any property owners in the area that would be impacted by the reduced setbacks.

2.           That relief can be granted in such a fashion that the intent of this title will be observed and the public safety and welfare be preserved.

The intent of this title is prescribed in CBJ §49.05.100 Purpose and intent.  The language of this section is reproduced below in italics, with discussion of each purpose in relation to the subject variance in regular type.

The several purposes of this title are:

              (1)          To achieve the goals and objectives, and implement the policies, of the Juneau comprehensive plan, and coastal management program;

The proposed project is reviewed for compliance with the Juneau Comprehensive Plan and Coastal Management Program under CSP2006-00005 simultaneously with review of this variance.  Please refer to the memorandum on CSP2006-00005 for discussion of the compliance of the proposed project in its entirety with this purpose.

The Comprehensive Plan states on page 69 that “eagles…enjoy considerable local affection.”  Policy 3.8 of the Comprehensive Plan states, “it is the policy of the CBJ to protect areas surrounding identified eagle nests from conflicting land uses.”  Policy 3.8 of the Comprehensive Plan is implemented with CBJ §49.70.310(a)(2), to which the subject variance is a requested relaxation.

Disturbance from highway operation and maintenance – Vehicle and pedestrian traffic could make some nest sites less attractive to eagles as they select a nest site. Increasing summer traffic volumes after the nest selection period (March 1 to May 31) could also increase disturbance levels and decrease the value of a nest site. Although some bald eagles are likely to habituate to highway traffic and nest successfully, others may be less tolerant of disturbance and could be forced to relocate elsewhere. Displaced eagles would either have to use alternative nest sites in their own territories, compete with already established birds for nesting territories elsewhere, avoid competition by settling for a nest site in marginal habitat, or forgo breeding efforts for the season. The effects of highway operation on eagles would therefore likely change over time as some eagles habituate and others try to reestablish themselves elsewhere.

Potential for long-term effects – Operation of the highway would involve a persistent source of noise disturbance that may result in the relocation of individual eagle pairs to alternate nest trees within their territory. Individual eagle pairs may even abandon their nest site and associated hunting perches altogether, especially during the summer months when traffic volumes are predicted to peak. Because food availability is identified as a key factor that influences breeding success, eagle pairs less sensitive to noise disturbance would likely habituate to highway operation near prime feeding areas. As a result, Alternative 2 is not likely to adversely affect the overall population of bald eagles in the Lynn Canal area on a long-term basis.               (FEIS Appendix R page 22 section 4.2)

Although infrequent disturbance may lead to short-term adverse effects, recurrent or consistent disturbance during the breeding and nesting seasons of bald eagles is more likely to have long-term adverse effects and is therefore the focus of conservation regulations.                  (FEIS Appendix R page 17 section 3.6)

The State will minimize short-term impacts by working with the Department of Fish and Wildlife and adhere to their guidelines for construction activities.  It appears that the years directly following construction of the roadway will be the most disruptive.  The introduction of continual traffic during the summer months to the existing nest will be disruptive to nesting activity.  There will be no feasible way to mitigate these impacts.  This will be the time when eagles that do not adjust to these changes will either move away or try and compete with other eagles in the area for preferable sites.  Over time however, the assumption is that the eagle population will adjust to the new roadway and that Alternative 2B is not likely to adversely affect the overall population of bald eagles in the Lynn Canal area on a long-term basis.

Due to the difficult topography of the three eagle nest sites (See Attachments C& Attachment D, Plan and Profile Sheets F16 and F17), it is felt the only feasible alternative for mitigation is to tunnel past the sites.  According to the analysis in Criterion 1, the one feasible alternative to avoid encroachment would be to tunnel at estimated costs of between 26 and 68 million.  Based on the Engineer's estimate for the initial phase of construction of the roadway, ranging from $75,000,000 to $80,000,000, the costs of mitigation would be a low of 32%, and a high of 91% of the total project costs

Because the applicant will carry out mitigation during construction adhering to the Department of Fish and Wildlife guidelines and the conditions attached to the conditional use permit and this request, that there is no feasible means of mitigating all potential impacts without extreme costs, and the conclusion that Alternative 2b is not likely to adversely affect the overall population of bald eagles in the Lynn Canal area on a long-term basis, staff believes that the requested relief can be granted in such a fashion that the intent of this title will be observed with regard to this purpose.

              (2)          To ensure that future growth and development in the City and Borough is in accord with the values of its residents;

The Juneau Comprehensive Plan is the policy document for the CBJ that is used to establish and convey the values of the residents of the CBJ.  The preface of the Juneau Comprehensive Plan states that:

“The citizens of Juneau are nearly unanimous in supporting their community as a desirable place to live.  The qualities cited most frequently are the beauty of the natural setting and surrounding wilderness, [and] recreational opportunities…

“In order to protect and enhance Juneau’s livability, most agree that it is important to safeguard the environment…and institute reasonable controls over land development and public services…

“In implementing the plan, care must be taken to protect natural amenities and develop carefully, or not at all, on land which contains hazards or important natural resources.”                                             (pages vi and vii)

Page 69 of the Comprehensive Plan states “eagles…enjoy considerable local affection.”  Policy 3.8 of the Comprehensive Plan states, “it is the policy of the CBJ to protect areas surrounding identified eagle nests from conflicting land uses.”

Quotations from the FEIS in the discussion of Purpose (1), above, show that the proposed project will conflict with and negatively affect bald eagles in the short term, although eagles will likely habituate to the impacts of the road, or eagles will move to areas where they are comfortable with the level of noise and other impacts from the project. 

Protection of eagles and eagle nest trees is important to the citizens of Juneau according to the Comprehensive Plan.  What is not addressed is whether there is some lesser protection that is acceptable if measures are taken to mitigate the impacts, the proposal is not likely to adversely affect the overall population of bald eagles in the Lynn Canal area on a long-term basis, and the cost to do additional mitigation is extremely high.

              (3)          To identify and secure, for present and future residents, the beneficial impacts of growth while minimizing the negative impacts;

The FEIS indicates that eagles will be negatively impacted by proximity of the highway to nesting trees, although the negative impacts will vary from nest to nest, eagle pair to eagle pair, and may be the result of construction activities in some cases and highway use in other cases.  The State will minimize short-term impacts of the road construction by working with the U S Department of Fish and Wildlife and adhering to their guidelines for construction activities.  It appears that the years directly following construction of the road will be the most disruptive.  The introduction of continual traffic to site of the existing eagle nests during the summer months will impact nesting activity.   There is no feasible way to mitigate these impacts. Overtime, however, the assumption is that the eagle population will adjust to the roadway.  It is stated that construction of alternative    2b is not likely to adversely affect the overall population of bald eagles in the Lynn Canal area on a long-term basis.

The purported benefits of the extension of the roadway are to eventually provide better access to Juneau through a combination roadway and a ferry connection.  According to the analysis in Criteria 1 the one feasible alternative to avoid encroachment would be to tunnel at estimated costs of between 26 and 68 million.   Based on the Engineer's Estimate for construction of this section of roadway, ranging from $75,000,000 to $80,000,000, the costs of mitigation would be a low of 32%, and a high of 91% of the total project costs.  At these costs, denial of the variance would practicably prevent the use of this property for an access road to serve Juneau.

Because the applicants will carry out mitigation during construction adhering to the Department of Fish and Wildlife guidelines and the conditions attached to the conditional use permit and this request, that there is no feasible means of mitigating all potential impacts without out extreme costs, the conclusion that Alternative 2b is not likely to adversely affect the overall population of bald eagles in the Lynn Canal area on a long-term basis, and that denial of the variance would practically prevent the construction of the access road , staff believes that the requested relief can be granted so that the intent of Title 49  will be observed with regard to this purpose.

              (4)          To ensure that future growth is of the appropriate type, design and location, and is served by a proper range of public services and facilities such as water, sewage, and electrical distribution systems, transportation, schools, parks and other public requirements, and in general to promote public health, safety and general welfare;

Although the proposed project is  related to this purpose of Title 49, the requested variance is not related to this purpose, as the granting or denying of the requested relaxation would have no effect on the public services provided in the project area, and would similarly have no effect on public health, safety and general welfare.

Purpose (4) is not related to the requested variance.

              (5)          To provide adequate open space for light and air; and

The requested relaxation will have no effect on the provision of adequate open space for light and air for the human residents of the CBJ.

              (6)          To recognize the economic value of land and encourage its proper and beneficial use.

The granting of these variance requests would allow construction of Phase I of Alternative 2B.  The purported benefits of the extension of the roadway are to eventually provide better access to Juneau through a combination roadway and a ferry connection.  According to the preceding analysis, the one feasible alternative to avoid encroachment would be to tunnel at estimated costs of between 26 and 68 million that would make the cost of mitigation from a low of 32%, and a high of 91% of the total project costs.   Denial of the variance would practicably prevent the use of this property for an access road to serve Juneau at these extreme costs. It appears that there will a number of similar situations, with regard to eagle tree avoidance and cost, with in the remainder of the proposed road alignment.

Public safety is not an issue in the eagle nest tree setback.

The June 5, 2006 email from Reuben Yost (DOT&PF) to Benjamin Lyman (CDD) (Attachment J) includes the applicant’s response to Criterion 2:

Public safety is not an issue in the eagle nest tree setback; observing the intent of the title, which only in the most general terms applies to this zoning ordinance, is indicated by the review and non-objection of the USF&WS bald eagle biologist who identified the nests and continues to coordinate with DOT&PF to minimize impacts to eagles and assure compliance with the federal law that protects them.

It is staff’s opinion that the requested relief can be granted in such a fashion that the intent of this title will be observed and the public safety and welfare be preserved.

It should be noted that the preamble to the 6 variance criteria listed in the code has somewhat different wording than that of criteria 2:

The board of adjustment may grant a variance in harmony with the general purpose and intent of this title.

Yes.  Staff finds that Criterion 2 is met.  The requested relief can be granted in such a fashion that the intent of this title will be observed, as discussed in the findings for purposes (1), (2), (3) and (6).  The requested relief would not affect the preservation of public health, safety, and general welfare.

3.           That the authorization of the variance will not injure nearby property.

We have found no evidence that the grant of this variance would injure nearby property.  Specific concerns with the project such as impacts on wetlands are being addressed in the design of the roadway and are not directly related to the roadway setback from the eagle nest trees.

Yes.       Staff finds that Criterion 3 is met.  The authorization of the variance will not injure nearby property.

4.           That the variance does not authorize uses not allowed in the district involved.

The proposed project is a highway.  Highways are not a category of land use listed under the Table of Permissible Uses, §49.25.300, they are elements of transportation system infrastructure present in all zoning districts.

Yes.       Staff finds that Criterion 4 is met.  The variance does not authorize uses not allowed in the district involved.

5.           That compliance with the existing standards would:

(A)         Unreasonably prevent the owner from using the property for a permissible principal use;

As noted in the discussion of Criterion 4, above, the proposed project is a road that will provide access.  The subject properties are all currently in some type of use, be it mining, recreation, subsistence, or as a part of the greater Tongass National Forest.  If the proposed project is needed for access to increase the utility of the lands through which it passes, compliance with the existing standards would be possible—it would simply be very expensive to comply with the existing standards and construct the Preferred Alternative.  Because Criterion 5 (C), below, directly examines the cost issue, the cost analysis for the affirmative response is provided there.

Yes.       Staff finds that sub-criterion 5(A) is met.  Compliance with the existing standards would unreasonably prevent the owner from using the property for a permissible principal use.

(B)         Unreasonably prevent the owner from using the property in a manner which is consistent as to scale, amenities, appearance or features, with existing development in the neighborhood of the subject property;

The land through which the proposed project passes is largely undisturbed, undeveloped forest.  There is no development in the neighborhood of the subject property to compare the proposed project to in terms of scale, amenities, appearance or features.

      Staff and Director’s Finding:

N/A.      Staff finds that sub-criterion 5(B) is not applicable to the subject variance.

(C)         Be unnecessarily burdensome because unique physical features of the property render compliance with the standards unreasonably expensive;

Given that avoiding the 330 foot primary nest area is estimated to cost at least one million dollars per nest by DOT&PF, and that the subject variance relates to 3 nests, a figure of at least $7 million must be added to the cost of Alternative 2B listed above if the requested variance is not granted.  This would bring the cost of Alternative 2B to at least $95 million, a much more expensive project than Alternative 3.  This calculation does not appear to have been considered in the analysis used in determining the Preferred Alternative.

The “Comments for Primary Zone Encroachments” column on Table B-1 (attached) describes the unique physical features of the property that force the alignment of the proposed road within the primary buffer area.  The topographic data shown on the Plan and Profile sheets (Attachment C and Attachment D) show the location of each nest and its primary buffer area in relation to the unique physical features of the property.  These documents show that DOT&PF has attempted to eliminate encroachment of construction activity into the primary buffer area of each nest to the greatest extent practicable within the proposed surface alignment for Alternative 2B.

There is no evidence in the FEIS that the option of tunneling to avoid encroachment into eagle nest buffer areas was considered in designing the proposed alignment.  Tunneling, although more expensive than a surface road, would have multiple benefits.  Encroachment into eagle nest buffer areas would be eliminated, visual impacts of the road would be reduced, and fragmentation of terrestrial habitat would be reduced through the provision of wildlife overpasses. As is noted above, tunneling would not be appropriate in all cases, as site-specific topography and geology will vary from nest to nest.  It appears from the comments on Table B-1 and the topographic information on the Plan and Profile sheets tunnels may be feasible for avoiding encroachment into the primary buffer areas of nest Nos. 076, 119, and 074, but that tunnels would not be appropriate for avoiding encroachment into the buffer areas of nest Nos. 114, 109, & 108.

Yes.       Staff finds that sub-criterion 5(C) is met.  Compliance with the existing standards has been shown to be unnecessarily burdensome because unique physical features of the property render compliance with the standards unreasonably expensive.  Due to topographic constraints the only alternative to the proposed alignment would be tunneling, which has been estimated to cost between $26.88M and $68.88M.  Based on the Engineer’s estimate for construction of this section of roadway, between $75M and $80M, the cost of mitigation would be a low of 32% and a high of 91% of project costs.

              or

(D)         Because of preexisting nonconforming conditions on the subject parcel the grant of the variance would not result in a net decrease in overall compliance with the Land Use Code, CBJ Title 49, or the building code, CBJ Title 19, or both.

There are no preexisting nonconforming conditions on the subject parcel.

No. Staff finds that sub-criterion 5(D) is not met.  Preexisting nonconforming conditions do not exist on the subject parcel.

The June 5, 2006 email from Reuben Yost (DOT&PF) to Benjamin Lyman (CDD) (Attachment J) includes the applicant’s response to Criterion 5:

“Compliance with existing standards would resulting in a combination of A, B, and C.  At the very least, expensive and unstable rock cuts would be required at some nests, at other the highway would be forced further into Lynn Canal, preventing use of upland ground.”

Yes.  Criterion 5 is met for nests No. 076, 119, and 074, as described above for subsections 5 (A) and 5(C).

6.           That a grant of the variance would result in more benefits than detriments to the neighborhood.

This criterion is not applicable as there is no neighborhood associated with the road alignment.

JUNEAU COASTAL MANAGEMENT PROGRAM  

The requested variance and proposed project are related to the Juneau Coastal Management Program (JCMP) statement at IX 11.B(5) that “…The U.S. Fish and Wildlife Service recommends a non-buildable buffer zone of at least 330 feet around known eagle nests…”  USF&WS staff has indicated that the requested variance in not likely to disturb eagles using the subject nests if the Mitigation Measures listed on page W-361 of the FEIS are followed.

FINDINGS

1.           Is the application for the requested variance complete?

Yes.       The application for the requested variance is complete for the following nests:  No. 076, 119 and 074.

 

2.           Will the proposed development comply with the Juneau Coastal Management Program?

Yes.       The requested variance complies with the Juneau Coastal Management Program if the Mitigation Measures on page W-361 of the FEIS are followed.  These Mitigation Measures are listed as recommended conditions of approval of the requested variance, with language modified to make the Mitigation Measures read as conditions and to ensure that CDD staff is involved in enforcing the conditions.  Please refer to the memorandum on CSP2006-00005 for discussion of the entire project’s compliance with the JCMP.

 

3.           Does the variance as requested, meet the criteria of Section 49.20.250, Grounds for Variances?

Yes.  The variance request meets the criteria of Section 49.20.250, Grounds for Variances, as described in the Analysis section of this memorandum, for nests No. 076, 119, and 074.

 

RECOMMENDATION

It is recommended that the Board of Adjustment adopt the Director’s analysis and findings and grant the requested Variance, VAR2006-00024, for nests No. 76, 119 and 74 but not for any other nests listed in the application for the subject variance.  The variance is subject to the Mitigation Measures identified on page W-361 of the FEIS and Section IV.F. of the Record of Decision for the Juneau Access Project, as modified below to be phrased as conditions of approval.

1.           Construction activities in the vicinity of bald eagle nets will be coordinated with the USF&WS to determine the need for alignment changes (for newly discovered nests), blasting plan changes, or other measures to avoid impacts to eagles.

2.           On-the-ground nest surveys will be conducted before clearing takes place to confirm the location of trees with eagle nests.

3.           No construction will occur within 330 feet of an eagle nest, and no blasting will occur within 0.5 mile of an eagle nest during the March 1 to May 31 nest selection period unless agreed to by the USF&WS.  If a nest is active, no construction or blasting will occur within these distances until after August 31, unless the USF&WS approves a plan to avoid impacts while operations continue.

4.           In areas where clearing occurs to within 100 feet of a nest tree, DOT&PF and USF&WS will jointly assess the potential for windthrow and DOT&PF will stabilize the tree or adjacent trees, if determined necessary.

5.           During construction, DOT&PF and USF&WS will assess the sufficiency of natural screening between the highway and any eagle nests below the elevation of the road within the 330-foot zone.  Additional screening will be developed if necessary.

6.           DOT&PF will continue to fund USFWS aerial surveys for a period of five years to assess the impact, if any, of the project on the Lynn Canal bald eagle population.

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