DATE:               August 10, 2000

TO:                     Planning Commission

FROM:              Tim Maguire, Planner
                            Community Development Department

FILE NO.:        VAR2001-00017

PROPOSAL: A variance to reduce the required setback from an eagle nest tree on public land from 330 feet to 50 feet, and greater setback distances for three other eagle nest trees, for the proposed use of a rock quarry at Stabler’s Point.


GENERAL INFORMATION

Applicant:                     City and Borough of Juneau

Property Owner:           City and Borough of Juneau

Property Address:        13 Mile Glacier Highway

Legal Description:         Lot 1, USS 3810

Parcel Code Number: 4-B30-0-102-002-0

Site Size:                    Approximately 10-acre extraction area, of a 310-acre parcel

Zoning:                       RR, Rural Reserve

Utilities:                      CBJ Water Service and On-Site Sewer

Access:                      Glacier Highway

Existing Land Use:     Vacant - Old Quarry Site

Surrounding Land Use: North - Vacant CBJ Land
                                    South - Single-Family Residential, Allen Marine, Glacier Highway
                                    East - Auk Nu Creek, Single Family Residential, Nursery
                                    West - Greens Creek Dock, Vacant CBJ

PROJECT DESCRIPTION AND BACKGROUND

The applicant has requested a Conditional Use Permit to reopen a rock extraction quarry on a portion of Stabler Point. The quarry operation involves clearing and grubbing, drilling, blasting, excavation, sorting and crushing of rock materials for construction purposes. The CBJ is requesting a 10-year permit, beginning upon approval of this Conditional Use permit.
 
The existing soil and rock reserves of the quarry are approximately 1.8 million cubic yards of usable shot rock fill materials. The rate of extraction will be determined by the size and scheduling of upcoming CBJ and other projects.

As noted above this is a request to reopen a quarry operation at Stabler’s Point. On August 8, 2000, the Planning Commission approved a quarry permit at this site, USE2000-00045. This permit was for a continuation of quarry operation at the face of a hillside along Glacier Highway. In review of the conditional use application an eagle nest was discovered approximately 50 feet from the proposed new excavation limits. (See Nest # 2, Attachment C). This nest had been at this location only a short period of time, approximately 2 years. According to USFWS, this nest was established during the actual operation of the previous quarry activity.

In conjunction with the use permit, a variance was applied for and granted ( VAR2000-00037) to allow quarry development within the minimum 330 foot required setback for eagle nest trees. Subsequently another quarry permit was applied for near this site (USE2000-00066) but no variance was required because the new quarry site was more distant from the eagle nest tree. Both permits have now expired.

The current quarry request is a much lager proposal and consequently will potentially encroach into required setbacks for 4 trees. The following is a list of the subject trees and the distance from the proposed excavation limits

#1. 50 ft.
#2. 77 ft. (to the existing cut towards the west)
#3. 152 ft.
#4. 105 ft.

The Fish and Wildlife Service (USFWS) has been contacted and asked for recommendations regarding working near the subject nest trees. The USFWS , as with the previous variance request, recommended that no heavy equipment operations or blasting take place within 330 feet of an bald eagle nest tree in the Stabler’s Point rock quarry between March 1 through May 31, and the time frame be extended to August 31, if a nest is in active use by the eagles. Work that does not result in significant disturbance to bald eagles may proceed. However, if work is to take place in the nesting season, it is recommended the contractor employ a qualified eagle monitor to observe eagle activity to insure disturbance does not occur.

June 1 through August 31 is the time of year when use of the trees for nesting is established and may or may not contain a nesting pair of eagles. If a nest is not in active use by eagles by May 31, construction activities within 330 feet could proceed provided the nest tree is not jeopardized.

Since the CBJ code as written does not have the flexibility as of USFWS guidelines, a variance is required to proceed with development. The applicant has provided a set of eagle monitoring specification that would be applied to any operator of the Stablers Point quarry site if a variance were to be approved. (See Attachment B)

Under Article III Sensitive Areas Section §49.70.310 the CBJ Land Use code states:

§49.70.310 HABITAT. (a) There is adopted the sensitive areas map dated September 9, 1987, as the same may be amended from time to time by the assembly by ordinance. Development in the following areas, some of which are designated on the map, is prohibited:

(1) On Benjamin Island within the stellar sea lion habitat;

(2) Within three hundred thirty feet of an eagle nest on public land;

(3) Within fifty feet of an eagle nest on private land, provided that there shall be no construction within three hundred thirty feet of such nest between March 1st and August 31st if it contains actively nesting eagles;


ANALYSIS

Variance Requirements

Under CBJ §49.20.250 as amended by Ordinance Serial No. 95-33, 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;

We know of no lessor relaxation or other remedy, other than that being proposed by the applicant, that would give substantial relief to the applicant and concurrently be more consistent with justice to other property owners. The quarry location is set and is based on the plan to quarry into the hillside and establish a new roadway alignment for Glacier Highway. Modification to the proposed excavation limits would defeat this long term goal. However, restrictions on quarry activities during certain times of the year based on USFWS guidance are workable. A lessor relaxation would severely restrict the procurement of materials as well as improvements to the highway in that area. We therefore find in the positive for this criterion.

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;

We believe that the grant of this variance to reduce the required setback from an eagle nest tree from 330 feet to 50 feet, and greater distances for three other trees, with restrictions to operate in accordance with the recommendations of the U.S. Fish and Wildlife Service, would be consistent with the intent of this title and the public safety and welfare would be preserved. We therefore find in the positive for this criterion.

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. The quarry operation will be controlled by the requested conditional use permit which in order to be approved must be found not to endanger the public health or safety. We therefore find in the positive for this criterion.

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

The grant of this variance will not allow uses not otherwise allowed in this zoning district. The use of this site for a quarry operation can be allowed with an approved conditional use permit. We therefore find in the positive for this criterion.

5. That compliance with the existing standards would:

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

There is substantial evidence to suggest that compliance with the standards would unreasonably prevent the owner from using the property for a permissible principal use. Compliance with the standard would eliminate the ability to quarry rock from this area of the CBJ due to the occurrence of many eagle trees in the vicinity. In the staff report for USE2001-00022 the need for this quarry site is demonstrated. A primary use of the extraction activities will be to supply rock for community projects. In addition, the long-range plan is to develop a new roadway corridor for Glacier Highway in this area and eliminate the existing dangerous curve. This requires that the extraction activity continue to occur into the hillside to facilitate this plan. We therefore find in the positive for this sub-criterion.

(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,

There some evidence to suggest that compliance with the eagle nest tree setback requirement would prevent the owner from using the property in a manner which consistent as to scale, amenities, appearance or features, with existing development in the neighborhood. The project is located in an area that is predominantly vacant, a high rock bluff and adjacent to state highway right of which was constructed by cutting into the existing hillside. However there are residences in the neighborhood and due to the scale of this proposed quarry operation, this project would not be consistent with their scale, amenities, appearance etc. We therefore find this sub-criterion is not met.

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

We believe that the subject lot has unique physical features. It is one of very few sources of good rock in the community that can be screened from surrounding development. And because of the substandard curve on this portion of Glacier Highway, the continuance of quarry operations will eventually improve the highway alignment. The site is constrained due to the proximity of a number of eagle nest trees in the area. Procurement of materials for these community projects and the proposal for road realignment at Stabler’s Point would not be otherwise possible without some leniency in the setback standard. We therefore find in the positive for this sub-criterion.

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 pre-existing nonconforming conditions on the subject parcel.
We therefore find in the negative for this sub-criterion.
We therefore find that criteria five (5) have been met.

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

We believe there is evidence to suggest that a grant of the variance would result in more benefits than detriments to the neighborhood. The eventual improvements to the roadway alignment will benefit the property owner to the south of Glacier Highway. The initial plan for the roadway improvements to this section of road was to reduce the curve by cleaving off sections of the existing hillside. This would result in blasting and construction activities close to the nearby residence. This plan also resulted in the encroachment of development activities into eagle nest setback areas. The current plan also has the long term benefit of eliminating this dangerous section of roadway.

The detriments will be in the form of impacts in the immediate area. Expected impacts of noise, traffic, dust and blasting are proposed to be mitigated by conducting operations in a controlled manner in accord with the Conditional Use Permit Conditions, and meeting the guidelines recommended by USFWS for protection of eagle nest trees. We therefore find in the positive for this criterion.

 

JUNEAU COASTAL MANAGEMENT PROGRAM

The proposed development was reviewed for compliance with CBJ §49.70.900, the Juneau Coastal Management Program. The analysis reveals that no provisions of the program apply to the issue of eagle nest tree setback. The CBJ Land Use Code specifically addresses eagle nest trees in the Habitat Section §49.70.310. (cited above). The code prohibits development within 330 feet of an eagle nest on public land. The staff recommendation in this variance is based on the conclusion and recommendations by the U.S. Fish and Wildlife Service. The USFWS has indicated that quarry operation may proceed if a schedule is followed to protect eagle nests during active nesting season and all other protections are exercised that would prevent damage or destruction of eagle nest trees.

 

FINDINGS

CBJ §49.20.240, 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 CBJ §49.20.250.

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

1. Is the application for the requested variance complete?

Yes. The applicant has submitted sufficient application and support materials for staff to conduct a review and make findings and recommendations.
 
Under CBJ §49.70.900 (b)(3), General Provisions, the director makes the following Juneau Coastal Management Program consistency determination:

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

Yes. The proposed development was reviewed for compliance with CBJ §49.70.900, the Juneau Coastal Management Program.. We find that the proposed quarry operation relative to this variance complies with the JCMP.

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

Yes. Based on the preceding evaluation, the variance, as requested, meets all six criteria of Section §49.20.250, Grounds for Variances.

RECOMMENDATION

We recommend that the Board of Adjustment adopt staff’s analysis and finding, and recommend approval of this variance to reduce the required setback from an eagle nest tree on public land from 330 feet to 50 feet, and for greater distances for three other eagle nest trees, for the development of a rock quarry at Stabler’s Point. The variance approval shall be subject to the following conditions:

1. The applicant shall assure that the rock extraction operations are scheduled consistent with the recommendations of the U.S. Fish and Wildlife Service for the protection of nesting eagles; and

2. The applicant shall insure that no heavy equipment operations or blasting take place within the Stabler’s Point rock quarry between within 330 feet of an eagle nest tree from March 1 through May 31, subject to modification from the USFWS.

3. The applicant shall employ a qualified eagle monitor during the time period of June 1 through August 31, if quarry operations take place within 330 feet of an eagle nest tree determined to be active by U.S. Fish and Wildlife Service, or other measures deemed acceptable by the USFWS.

4. The attached eagle monitoring standards shall reflect these conditions of approval and be applied to any quarry operation at Stabler Point.