Twelve Lots, Four Acres of Wetland, and a Dead Permit

Order of operations

1. Zoning and lot-yield check. 12 lots × 3 acres = 36 acres of the 38, but the road dedication, the 20-foot utility easement, and any wetland buffer come off the top. Every lot must still contain at least 2 acres of buildable land meeting the minimum lot size. Expect the yield to drop; run the numbers before spending on surveys.
2. Wetland delineation / jurisdictional determination by the Corps of Engineers (and check the borough's own wetland mapping and buffer standards). The 4-acre wetland sits across the only practical road route, which is the worst possible location - the road corridor will need a crossing, which triggers a Section 404 permit and, potentially, state water-related review. Wetland that falls inside a lot may leave it with no buildable envelope.
3. Access. The 60-foot borough right-of-way is not the same as an improved road. Approach permits, road construction standards to borough specifications, and in some cases a DOT&PF review for the connection.
4. Septic/wastewater feasibility. Test holes and percolation work on every lot; wetland and high groundwater constrain placement, which in turn constrains the building envelope and the setback analysis.
5. Preliminary plat, then final plat, through the borough platting authority, with survey, improvement guarantees, agency review, and a public hearing; recording follows approval and any appeal period.
6. Only then can lots be marketed - and note that a subdivision of this kind sold to the public may also trigger the Alaska Land Sales Practices Act registration step.

Where this fails: an unapproved plat cannot be recorded and lots sold off it; and lots that cannot be built on because of wetland or failed access are a disclosure and marketing problem regardless of legality.

Start with what the use was. Gravel extraction in a rural residential district was allowed only because the borough granted a conditional use permit. It was never an as-of-right use.

Two questions control the answer

1. Does nonconforming-use status apply? Nonconforming protection generally covers a use that was lawful when it began and has continued, protecting it from later zoning changes. Here the use lost its authorization when the CUP expired, and it has apparently been idle for three years. Many codes treat discontinuance for a stated period as abandonment, which destroys nonconforming status; check the borough code's abandonment period and whether expiration of the permit alone ends the use.
2. Was the permit extended or renewed? Confirm in writing with the planning department whether the CUP was renewed, administratively extended, or simply lapsed, and get the file.

Practical conclusion: treat resumption as a new conditional use application - fee, notice, public hearing, and conditions (hours, haul routes, dust, berms, reclamation bonding). Do not let the owner restart work based on 'we did it before.' Operating without a valid permit invites an enforcement action and a stop-work order, and it will poison the subdivision application.

Two side effects the licensee must flag

• Reclamation: the code likely requires the pit to be reclaimed, and a bonded reclamation plan may be a condition of any further approval.
• Disclosure: a former gravel pit means unstable slopes, potential petroleum or debris contamination, and fill-quality questions. That is material to any lot buyer and must flow into the seller's disclosure and the plat notes.

Variance elements the applicant must prove (wording varies by code, but the substance is consistent):

1. Unique physical condition of the property - here, the wetland - that is not shared by neighboring parcels.
2. Hardship not self-created. This is the weak link: the owner drew the lot lines. A hardship created by the applicant's own subdivision design is ordinarily fatal to a variance.
3. No diminution in value of surrounding properties and no impairment of the purpose of the zoning.
4. Minimum relief necessary - the smallest departure that solves the problem, not a blanket waiver.
5. No special privilege inconsistent with other properties in the district.

Why this variance probably loses: element 2. The board will say the owner created the conflict by platting a buildable envelope that overlaps the wetland buffer.

Better path - fix it at the plat, not at the board

• Replat/redesign the lot lines so Lot 7 has a compliant building envelope away from the wetland.
• Designate a building envelope on the plat with a note restricting construction to the surveyed envelope, so the setback question is resolved at the design stage.
• Reduce the lot count - 12 lots at 3 acres is aggressive once roads, easement, and wetland are subtracted.
• Administrative adjustment if the code provides one for small dimensional relief, which is cheaper and faster than a variance.
• If a variance is still needed on some other lot, document the wetland delineation and the buildable-area analysis so the board sees that the constraint is real and the request is minimal.

Licensee's role: do not promise the owner that a variance will be granted, do not market lots as 'buildable' before the building envelopes are confirmed, and disclose the wetland and the pit to every prospective buyer.