TO: Planning Commission
FROM: Tim Maguire, Principal Planner
SUBJECT: Appeal of Director's Decision
DATE: May 2, 2001
FILE NO.: INQ2001-00007
The owner of Lot 3A, Block 25, Douglas Townsite applied for a grading permit on April 4, 2001. The grading permit included a site plan and building elevation indicated the purpose of the proposed grading. The plans showed a proposal to construct a detached single family dwelling and a garage. A single-family dwelling already exists on the lot. A determination was made at the time of the review of the grading permit that a second detached dwelling, was allowed to be constructed on the property, and the grading permit was issued on April 6, 2001.
On April 16, 2001 the owner of Lot 3A, Block 25, Douglas Townsite applied for a building permit to construct the single family dwelling and garage. The existing garage would also be removed. (See Attachment A&B) On April 17, 2001, four neighbors joined together to appeal the decision of the Director of Community Development decision to allow two single family detached dwelling units to be on this D-18 lot.
The Planning Commission considered the notice of appeal at their April 24 meeting, decided to hear the appeal, and set the hearing date for May 8, 2001.
The Land Use Code provides in CBJ §49.20.110 that decisions of the director may be appealed.
Article I Appeals
49.20.110 APPEALS TO THE COMMISSION. (a) Review by the commission of a decision of the director, may be requested by filing a notice of appeal stating with particularity the grounds therefor with the department within twenty days of the date of the decision appealed. The notice shall be considered by the commission at a regular scheduled meeting. The department and any aggrieved person, including the developer, may appear at that meeting and explain to the commission why it should hear the appeal. The appeal shall be heard unless it presents only minor or routine issues and is clear from the notice of appeal and any evidence offered at the consideration thereof, that the decision appealed was supported by substantial evidence and involved no policy error or abuse of discretion.
(b)If the commission decides to hear the appeal, it shall announce whether it intends to
review the entire decision, or merely a portion thereof and whether review shall be de
novo or on the record. If the commission decides to hear the appeal, it shall give public
notice thereof in a newspaper of general circulation in the municipality. The department
shall prepare the record on appeal, which shall consist of the original application and
supporting materials, written public comment thereon, and all notes, memoranda,
and other department material in relation thereto. The burden of proof in the appeal shall
be on the party challenging the decision of the director. In a hearing de novo, proof shall
be established by a preponderance of the evidence. If the appeal is heard on the record,
argument may be heard, but no evidence outside the record shall be admitted and the
decision of the department shall be upheld if there is substantial evidence in support
thereof and no policy error or abuse or discretion therein. The Commission may confirm,
reverse, modify the director's decision, or change the conditions which the director
placed on approval. The commission shall support its action with written findings.
The single issue of this appeal is whether two detached single family dwellings can be located on the same lot in multifamily zoning districts. The director has determined that this use is allowed. The neighboring property owners disagree with interpretation and base their appeal on the fact that this use is not listed as a use allowed under the Table of Permissible Use in the Land Use Code (See Attachment C).
The Directors basis for determining the use is allowed is the following section of the Land Use Code:
§49.25.520 MULTIPLE BUILDINGS C DENSITY DETERMINATIONS. The number of dwelling units allowed on a lot in a multifamily zone, shall be determined pursuant to this chapter without regard to whether the units are constructed in the same or different buildings. (Serial No. 87-49 ? 2 (part), 1987).
This section of the Land Use Code is clear. It states that in multifamily zoning districts dwelling units can be detached or in the same building. The number of dwelling is determined by the size of the parcel and the density allowed. The, D-18 multifamily zoning district for example, allows 18 dwellings per acre. In this zoning district, a ½ acre lot would allow 9 dwelling units on the same parcel either detached, in one building, or any combination.
A major rewrite of the Land Use Code was completed in 1987. A number of outstanding issues with the pervious Land Use Code were discussed and remedied. The previous code did not directly address the question of detached single family dwellings in multi family district. Section §49.25.520 was added to the new code to clarify this issue.
The appellants basis for appealing the Directors determination, is based on the following section of the Land Use Code:
TABLE OF PERMISSIBLE USES
The argument is that in the Table of Permissible uses, under Category 1.120, Single family detached, two dwellings per lot, is not identified as a use allowed in multi-family zoning districts. Since there is no number shown corresponding to the Multifamily zoning district columns, the use is not permitted. This prohibition is stated in the Land Use Code.
The addition of the category 1.120, Single family detached, two dwellings per lot was also a change that was made during the 1987 update of the Land Use Code. This use category was added to deal with another issue with the previous Land Use Code. Prior to 1987 a detached guest house was permitted as an accessory use to a single family dwelling in a number of the residential zoning districts. A number of these guest house were converted to apartments use with the addition of a kitchen. This was a continual enforcement problem. The Planing Commission in developing the new Land Use Code believed that a second detached dwelling on a single residential lot was an acceptable land use under certain limitations. They recommended that the code be revised to allow two detached dwellings per lot in the lower density residential zoning districts if the lot contained twice the square footage as that required for a single family dwelling. This was a single purpose change to the code, and Multi-family zoning districts were not discussed.
If the Table of Permissible Uses included this use under multifamily zoning district, the issue column would be clear cut. However, the Law Department has directed CDD that when there is conflict in the code, a reasoned interpretation needs to be made. The Director has interpreted the code as described above for the following reasons:
We conclude that the proper interpretation of the Land Use Code is that two detached single family dwellings are allowed to be constructed on Lot 3A, Block 25, Douglas Townsite.