DATE: December 4, 2000

TO: Planning Commission

FROM: Sylvia A. Kreel, Planner
Community Development Department

FILE NO.: VAR2000-00042

PROPOSAL: Variance to allow a 20 foot setback from Nine Mile Creek, where a 50 foot setback is required.


Applicant: Henry M. Deppner, Jr.

Property Owner: Henry M. Deppner, Jr.

Property Address: 10055 North Douglas Highway, Juneau, AK 99801

Legal Description: Lot 226, Tract B, USS 3546

Parcel Code Number: 6-D11-0-105-005-0

Site Size: 49,240 square feet

Zoning: D-1, Single-family and Duplex Residential

Utilities: CBJ water; Septic Sewer

Access: N. Douglas Highway

Existing Land Use: Vacant

Surrounding Land Use: North – North Douglas highway, D-1

South - RR, Rural Reserve

East - D-1, Single-family and Duplex Residential

West - D-1, Single-family and Duplex Residential



The applicant is requesting a variance from the required streamside setback in order to allow the construction of an access drive and a house pad for a single-family residence. The site is bisected by Nine Mile Creek. It slopes steeply down from North Douglas Highway and the west property line to the creek and then more gradually slopes back up toward the south or rear of the lot. The building site is generally located on a knoll situated along the west property line. Due to the slope and creek, there is a guardrail between the highway and the site, which prevent direct access onto the lot from the highway. The applicant is proposing to access the site through an easement on the adjoining property to the west. The applicant proposes to construct a 12-foot wide access drive along the west property line in order to access the house pad. The drive would be supported by a rock retaining wall, the toe of which would be 20 feet from ordinary high water (OHW) of Nine Mile Creek. The house pad measures approximately 4,000 square feet. The applicant has located the house pad so as to minimize the cut and fill of the slope. This is economically advantageous to the applicant. Additionally, it is environmentally advantageous as it reduces the likelihood of erosion and sedimentation into the creek. The fill for the house pad will be 30 feet from the OHW mark of the creek at its closest point.


Section 49.70.310 (a)(4) requires a 50-foot setback from the Ordinary High Water mark of Nine Mile Creek. This lot was created by a lot split approved in 1983. At that time the streamside setback was not required. However, even without the setback requirement, development would have been difficult due to the topography and restricted access to the site.


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.
  2. Yes. The requested variance is necessary for the applicant to access and construct a building site. As shown in surveyed drawings submitted by the applicant, it would be impossible to access the site without benefit of a variance. The driveway runs along the west property line as far from the creek as possible. The drive will only be 12 feet in width. These factors reduce the extent of the variance necessary. The variance requested also includes the house pad. The plans show the edge of the fill 30 feet from the creek. The applicant has located the pad along the west property line in order to stay as far from the creek as possible. Extending the access further south and locating the house outside of the setback would require significantly more cut and fill for both the access and the house. Other properties in the area have been developed with a single-family residence and have a driveway, which provides direct access to the residence. The relaxation requested would give substantial relief to the owner of the property involved and be more consistent with justice to other property owners in the area.

    Staff finds that this criterion is met.

  3. 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.

Pursuant to CBJ 49.05.100, the intent of Title 49 is, in part,

    1. To achieve the goals and objectives, and implement the policies of the Juneau Comprehensive Plan, and Coastal Management Program;
    2. To ensure that future growth and development in the city and borough is in accord with the values of its residents;
    3. To identify and secure, for present and future residents, the beneficial impacts of growth while minimizing the negative impacts.
  • The Comprehensive Plan supports residential development. This lot could not be developed for residential purposes without benefit of a variance from the streamside setback. The applicant has proposed use of silt fencing, hay bales, and filter fabric in order to minimize erosion and siltation thereby minimizing the negative impacts of development on the creek. There is no evidence to suggest that public safety and welfare would be affected by the variance.

    We recommend that this criterion is met.

    1. That the authorization of the variance will not injure nearby property.
  • There is no evidence that authorization of this variance as proposed would have an impact on surrounding properties. The proposed improvements are located well above the flood plane of the creek. The location of the facilities will not cause flooding of neighboring property.

    We recommend that this criterion is met.

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

  • The subject property is zoned D-1. In accordance with the table of Permissible Uses, a single-family use is an outright allowed use in the D-1 zoning district.
  • We recommend that this criterion is met.


    5. That compliance with the existing standards would:

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

    Yes. The lot is bisected by the creek. While it may be possible to locate a house further south outside of the setback it could not be accessed, even for construction purposes, without benefit of a streamside setback. Compliance with the existing standards would unreasonably prevent the owner from using the property for a permissible principal use.

      1. 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;
  • Yes. The surrounding properties are developed primarily with single-family residences with driveways providing vehicular access to the residences. Compliance with the stream setback requirements would prevent development of the subject property in a similar manner and with similar amenities as the surrounding residential properties.

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

    Yes. The topography of the site and the location of the stream, such that it bisects the lot, are unique physical features of the site, which would render compliance with the existing standards unnecessarily burdensome and unreasonably expensive.

  • or

  • (D)Because of preexisting nonconforming conditions on the subject parcel the grant of the variance would 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.

    No. Granting of the variance would not result in a decrease in the non-conforming conditions of the site.

  • Sub-criterion A, B and C are met. As such, we recommend that criterion 5 is met.

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

  • The proposal locates the development as far from the creek as possible. The applicant proposes use of hay bales and silt fences during construction and the use of filter fabric in order to minimize erosion. These features will help minimize the effects of locating development within 50 feet of the OHW mark of the creek. Property improvements are generally viewed as a benefit to a neighborhood. A variance allowing this property to be developed will result in more benefits than detriment to the neighborhood
  • We recommend that this criterion is met.


    The applicant has located the access and house pad as far from the creek as possible. The house pad is located so as to minimize the amount of cut and fill necessary for construction. The applicant is proposing measures to minimize erosion and sedimentation into the stream during construction.

    CBJ49.70.950(f) requires that structures and foundations located adjacent to cataloged anadromous streams, of which Nine Mile Creek is one "…shall have a fifty-foot setback from each side of the stream, where feasible and prudent,…The setback shall be vegetated or revegetated…" 

    Feasible and prudent is defined within the JCMP to mean, "consistent with sound engineering practice and not causing environmental, social or economic problems which outweigh the public benefit…"

    In this instance, maintenance of the 50-foot setback would effectively prohibit development of the property. The city approved the subdivision allowing the creation of the subject lot. As such, the city has an obligation to allow the lot to be developed or provide some sort of compensation. Adherence to this obligation for this lot and other established lots is in the public’s interest. The applicant has proposed constructing a retaining wall with rock to support the access drive and house pad. Culverts will be used to connect the drainage into existing drainage ditches. Full construction plans will be reviewed as part of the grading and building permit process to ensure the use of sound engineering practices. In this instance it would not be feasible or prudent to require a 50 foot setback from Ordinary High Water.

    The US Army Corps of Engineers (COE) has delineated almost the entire site as wetlands. The COE granted the previous owner of the site a permit to fill .22 acres of wetlands. The COE has indicated that this proposal would fill less wetland area, approximately .15 acres. Provided the applicant takes measures to avoid erosion and sedimentation, the COE permit may be transferred from the previous property owner to the current applicant.

    The wetlands immediately adjacent to the stream have the highest wetland values. Maintenance of these wetlands offer the greatest protection to the stream. The applicant has located the development out of this area. The JCMP section 49.70.950(a)(3) and (7) apply. The code specifically states:

  • 49.70.950(a)(3) Wetlands and tideflats shall be managed so as to assure adequate waterflow, nutrients, and oxygen levels, to avoid the adverse effects on natural drainage patterns, the destruction of important habitat, and the discharge of toxic substances.

    49.70.950(a)(7) Rivers streams and lakes shall be managed so as to protect natural vegetation, water quality, important fish or wildlife habitat and natural waterflow.

  • The applicant has proposed use of silt fencing and hay bales in order to minimize sedimentation and erosion. Staff will propose conditions intended to further minimize sedimentation and erosion through directing drainage away from the creek and filtering the water before it enters the creek. Additionally, staff will recommend a condition that the driveway and house pad be engineered to demonstrate that the road will not fail causing material to slough off into the creek and that exposed slopes be revegetated promptly.

    Provided the proposed conditions are met and erosion and sedimentation are minimized, the proposal is consistent with the enforceable policies of the JCMP and impacts to creek will be minimized.


    CBJ49.20.240, Board of Adjustment Action, states that the Board of Adjustment shall hear all variance requests and shall either approve, conditionally approve, modify or deny the request based on the criteria in CBJ49.20.250.

    Under CBJ 49.20.220, Scheduling and Fee, the director makes the following determination:

    1. Is the application for the requested variance complete?

  • Yes. We find that the application contains the information necessary to conduct a full review of the proposed project. The application submittal by the applicant, including the appropriate fees, substantially conforms to the requirements of the CBJ Land Use Code, Chapter 49.15.

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

    Yes. Based on the preceding analysis, it is found that subject to conditions the proposed project will comply with the enforceable policies of the JCMP.

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

    Yes. Based on the analysis above, the variance, as requested, meets all of the criteria of Section 49.20.250, Grounds for Variances.


    Staff recommends that the Board of Adjustment adopt the director’s analysis and findings and determine that criteria 1-6 found in Section 49.20.250 are met and grant the variance as requested. This recommendation is made subject to the following conditions:

    1. A siltation fence shall be installed between the construction activity and the creek throughout the duration of the construction of the driveway, house pad and residence.
    3. All cut and fill slopes and other disturbed portions of the site shall be revegetated immediately upon completion of the development of the driveway and house pad in order to minimize the potential for erosion.
    4. All construction equipment shall remain as far out of the 50-foot streamside setback as practicable.
    5. The driveway and house pad shall be designed by an engineer in order to demonstrate that the retaining structure will not fail.
    6. The cross slope of the driveway shall direct drainage away from the creek.
    7. The snow shall be plowed away from the creek.
    8. Stop dams shall be provided in the ditch adjacent to the west property line in order to slow the water flow and catch sedimentation.