January 27, 2011 |

Denker to appeal HAL variance

Union Street resident Mike Denker said he’ll appeal a 5-1 decision by the Haines Borough Planning Commission last week that reaffirmed a December variance for Haines Assisted Living.

Commissioner Andy Hedden cast the lone dissenting vote.

The December variance – which came after construction – was the second granted for encroachment into a 15-foot required separation between the addition and Denker’s home.

At the Jan. 20 commission meeting, members cited a section of code they said conflicted with the 15-foot required separation, one that allows commercial buildings in the commercial district to build to their lot line.

Because the code conflicts, the commission would have to defer to ensuring public safety and the 15-foot separation, but the blessings of the local fire department for the second variance trump that concern, said commission member Rob Goldberg.

"If the fire department didn’t see it as a public safety issue, we don’t see it as a public safety issue, either… If the public safety issue isn’t there, then the other portion of the code is what we have to go by," Goldberg said.

Denker, however, said such interpretation of code amounted to "rule-making" and "picking and choosing" which sections of law apply. "We’re all bound by the code. When government slips those bounds, we start (having) the haves and the have-nots, those above the law and those who have to adhere to the law."

Denker said this week he would appeal the decision to the Haines Borough manager.

He said HAL’s proximity to his home has raised new concerns about access to sewer lines and loss of view.

He said the variance still violates a section of borough law that prohibits those seeking variances from creating the conditions that give rise to them. "HAL created the conditions that required the new variance by violating the provisions of its previous variance."

Dissenter Hedden said he wasn’t comfortable enough interpreting code to vote in the affirmative. "I thought it should go to the assembly for more interpretation. I was uncomfortable with it being a unanimous decision."

Commissioners said planning code needs to be re-written to eliminate the conflict over the setbacks, and that future variance requests should include elevation drawings. Such drawings would have shown HAL needed more room than it requested under the first variance, Goldberg said.

Commissioners who reaffirmed the variance included Goldberg, Donnie Turner, Robert Venables, Lee Heinmiller and Roger Maynard.