19.70.050 Reasonable use exception and critical area variance.
A. Applicability. If the application of this chapter would result in denial of all reasonable and economically viable use of a property, and if such reasonable and economically viable use of the property cannot be obtained by consideration of a permitted alteration pursuant to AMC 19.70.045, then a landowner may seek a reasonable use exception from the standards of this chapter. Reasonable use exceptions are considered a critical area variance and are intended as a last resort and only when a variance can meet the requirements of this chapter.
B. General Requirements. “Reasonable use” is a legal concept articulated by federal and state courts in regulatory takings cases. Within the context of these cases and for the purposes of this title, “reasonable use” means uses allowed by the underlying zoning designation and subdivision of property is not allowed. When no possible alternative exists, a reasonable use exception must be considered a critical area variance, provided it is consistent with the general standards for variances under AMC 19.38.040 and other applicable requirements established in this chapter.
C. Procedures for Review.
1. A variance permit must be required for all reasonable use exceptions. Requests for such permits must be reviewed using the procedures applicable to Type 3 Hearing Examiner decisions outlined in AMC 19.20.030. A permit may not be issued unless it can be shown that the proposed development is fully consistent with the variance approval criteria enumerated in AMC 19.38.040 (variance criteria) as well as all of the requirements of this chapter.
2. In addition to other project related documents, all critical area variances must require a critical area report per AMC 19.70.115 to evaluate the proposed disturbance. The report must include:
a. A description of the function and condition of the critical area and/or buffer that would be altered;
b. An analysis of the effect of the development proposal on the critical area and/or buffer;
c. A description of actions that can be taken to modify the development proposal to avoid or reduce the alteration of the critical area and/or buffer and a discussion of whether these modifications are practical and reasonable;
d. A mitigation plan as required by this chapter.
3. Burden of Proof. The burden of proof is on the applicant to bring forth evidence in support of the application and upon which any decision has to be made on the application.
4. Public Comment. Consistent with AMC 19.20.030, the city must ensure the opportunity for public comment, including that from appropriate federal, state, and tribal natural resource agencies, to ensure the use of best available science before a decision is made.
D. Variance Criteria. A reasonable use exception may be granted only if the applicant demonstrates that all of the requested action is consistent with all of the variance approval criteria as set forth:
1. The application of this chapter would deny all reasonable economic use of the property and that there is no reasonable economically viable use with a lesser impact on the critical area than that proposed; and
2. Special conditions and circumstances exist that are peculiar to the land, the lot, or something inherent in the land, and that are not applicable to other lands subject to the provisions of this chapter; and
3. The inability of the applicant to derive reasonable use of the property is not the result of actions by the current or previous owner in subdividing the property or adjusting a boundary line, thereby creating the undevelopable condition, after the effective date of the ordinance codified in this chapter; and
4. Any proposed modification to a critical area will be evaluated through consideration of a critical area report and mitigation plan prepared by a qualified professional pursuant to the requirements of this chapter, and will be the minimum necessary to allow reasonable and economically viable use of the property. The critical area report and mitigation plan must be prepared utilizing best available science; and
5. Mitigation sequencing per AMC 19.70.125(A) has been applied, and the proposal mitigates impacts to the critical area on site to the maximum extent possible, while still allowing reasonable use of the lot; off-site mitigation may be utilized to the extent necessary to achieve no net loss ecological functions; and
6. The proposed development does not pose a threat to adjacent property or to the public health and safety; and
7. The applicant has demonstrated that the criteria in AMC 19.38.040, Criteria, are met; and
8. Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings under similar circumstances; and
9. The granting of the variance is consistent with the general purpose and intent of the Anacortes Comprehensive Plan, and planning policies.
E. Conditions. Conditions of approval may be included as part of the decision, including modifications to the size and placement of structures and facilities to minimize impacts to critical areas and associated buffers and mitigation requirements that ensure that all impacts are mitigated to the maximum extent feasible utilizing best available science.
F. Variances – Geologically Hazardous Areas. A variance must not authorize development within a geologically hazardous area or required setback or buffer from a geologically hazardous area unless a qualified professional has determined the development will not pose a threat to public safety or property. (Ord. 4025 § 2 (Att. A), 2022; Ord. 3064 § 2 (Att. A), 2021)