Act amending Chapter 61 of Title 21 of the Guam Code (P.L. 27-91)

MINA'BENTE SIETE NA LIHESLATURAN GUÅHAN file:///D/HTML/gum68373.htm[15.01.2025 17:38:05] Public Law 27-91 I MINA'BENTE SIETE NA LIHESLATURAN GUÅHAN 2003 (FIRST) Regular Session Bill No. 183 (COR) As amended by the Committee on Utilities and Land, and further substituted and amended on the Floor. Introduced by: J. M. Quinata v. c. pangelinan R. J. Respicio F. B. Aguon, Jr. J. M.S. Brown F. R. Cunliffe C. Fernandez Mark Forbes L. F. Kasperbauer R. Klitzkie L. A. Leon Guerrero J. A. Lujan T. R. Muña Barnes Toni Sanford Ray Tenorio AN ACT TO ADD SUBSECTION 61616(l) AND SECTION 61526 TO CHAPTER 61 OF TITLE 21 OF THE GUAM CODE ANNOTATED, TO ESTABLISH GUIDELINES ALLOWING THE DIRECTOR OF THE DEPARTMENT OF LAND MANAGEMENT LIMITED DISCRETIONARY AUTHORITY IN APPROVING MINOR SETBACK VARIANCES FOR RESIDENTIAL USES AND TO PROVIDE AN EXCEPTION FOR NONCONFORMING BUILDINGS AND NONCONFORMING USE OF LAND; AND TO REPEAL AND REENACT PART 5 OF CHAPTER 61 OF TITLE 21 OF THE GUAM CODE ANNOTATED, RELATIVE TO THE ESTABLISHMENT OF A FEE SCHEDULE. BE IT ENACTED BY THE PEOPLE OF GUAM: Section 1. Legislative Findings and Intent. I Liheslaturan Guåhan finds and recognizes that Guam’s Zoning Law includes various standards regarding building setbacks from the property line and other physical characteristics of development. There are occasions when the strict application of certain standards may be inappropriate because of special circumstances regarding the property. The variance procedure is intended to permit variations from the normal zoning regulation in cases where special or extraordinary circumstances occur at the property which prevent practical accommodation of the basic land use intended for the zone. A minor setback variance as construed within this Act, is a variance in connection with the location of a residential structure within a zone. In the case of minor variances, the Guam Chief Planner along with the Agency Review Committee hears and reviews an application recommending to the Guam Land Use Commission their findings. This procedure was implemented to streamline and simplify applications before the Guam Land Use Commission. However, the application process may consume ninety (90) to one hundred eighty (180) days for a decision to be rendered from the Guam Land Use Commission. This time requirement imposes undue hardship to a simple residential homeowner who may spend, at a minimum, Five Hundred Dollars ($500.00) to several thousand dollars to administratively process an application, meeting all statutory requirements not knowing whether the application will receive favorable consideration from the Guam Land Use Commission. This Act enables the Director of the Department of Land Management to have discretionary authority in the approval of minor setback variances involving residential uses. A specialized technical level of review involving land use planning techniques is applied which thus streamlines the variance process. Residential uses have synonymous setback requirements that are common throughout the various zones. Hence, the granting of a minor variance to allow the suitable location of a structure where practical difficulties exist due to special circumstances applicable to the property, including size, shape, topography, location or surroundings, in most circumstances, may only affect a neighbor closest to the property line where the variance is applied. This Act is sensitive to this matter and requires an applicant to obtain consent from such neighbors prior to an action. The granting of a minor variance does not permit a different land use than normally permitted in the applicable zoning MINA'BENTE SIETE NA LIHESLATURAN GUÅHAN file:///D/HTML/gum68373.htm[15.01.2025 17:38:05] district. Rather, the intent is to provide for discretion and flexibility where the strict interpretation of the Guam Zoning Law may result in the practical difficulty or an unnecessary hardship to carry out the spirit and purpose of Guam’s Zoning Law. I Liheslaturan Guåhan further finds that after Typhoons Chata’an and Pongsona, close to fifty (50) residential setback variances were submitted and are awaiting action by the Guam Land Use Commission. Most of the residential setback variance requests could be ascertained upon the passage of this Act. The multitude of variance applications was stimulated by appraisal reports determining that the setbacks were inconsistent with the intent of the Guam Zoning Law. Most of the inconsistencies resulted from boundary realignments, structural placement errors by contractors, an extension encroaching onto the setbacks, or through building inspection oversights resulting in an encroachment. A nonconforming use determination from an appraiser’s report, resulting in a setback encroachment, will prevent a lending institution, including the Small Business Administration, from issuing a loan. Many residential owners who are seeking Federal Emergency Management Agency assistance for damages sustained from Typhoons Chata’an and Pongsona and referred to the Small Business Administration are hindered from further assistance resulting by a nonconforming use determination appearing within an appraiser’s report. It is the intent of I Liheslaturan Guåhan to allow for the streamlining of minor residential setback variances which imposes undue hardship to a residential owner. I Liheslaturan Guåhan also finds that the Guam Land Use Commission has been assessing fees for the filing of land use applications adopted since the Tenth Guam Legislature. I Liheslaturan Guåhan further finds that the fees are antiquated and is not an accurate representation of the correct cost outlay. This Act repeals and reenacts that provision and authorizes the Guam Land Use Commission to establish a new fee schedule following the Administrative Adjudication Act. Section 2. A new Subsection (l) is added to §61616 of Chapter 61 of Title 21 of the Guam Code Annotated, to read: “(l) Notwithstanding other provisions within this Section, establish guidelines through resolution to permit the Director of the Department of Land Management, with advisement from the Guam Chief Planner, to utilize his discretion in approving minor yard setback variances specifically for single family residential dwellings or any assessory structure of a residential use which, at a minimum, satisfies the following requirements: (1) The variance is for not more than three (3) feet beyond the setback requirement of only one (1) yard (side, front, or rear) to allow the suitable location of a structure where practical difficulties exist due to special circumstances applicable to the building or property, including size, shape, topography, location or surroundings, depriving such property of privileges enjoyed by other property in the vicinity and under identical zoning classification consistent with the general welfare of the adjacent neighbors. (2) The granting of the variance does not authorize a use or activity which is not authorized by the zone regulations governing the parcel or property. (3) Water runoff from the roof line of any structure shall not encroach beyond the property line of a parcel. (4) No encroachment onto an area engrossed by a grant of easement shall occur. (5) Concurrence from the adjacent property owners located along the property line closest to the setback encroachment shall be obtained. (6) Real property chattels or any transient residential accommodations including breakfast inns, motels or hotels are not considered as residential dwellings for the purpose of this Subsection. (7) No other setback variance shall be granted by the Commission on the parcel affected by a grant of variance through this Subsection. The physical removal of any structure or a portion thereof approved through this Subsection shall void the restrictions imposed by this Subsection. (8) The Department shall notify all contiguous property owners of the proposed minor yard setback variance. Upon notification by the Department, the property owners shall have thirty (30) days to submit written objections to the Director.” Section 3. Exception for Restoration of Minimum Yard and Lot Area Table. A new §61526 is hereby added to Part 3 of Chapter 61 of Title 21 of the Guam Code Annotated, to read: “§61526. Exception for Nonconforming Buildings and the Nonconforming Use of Land. (a) Any building or structure constructed on a Single Family (R-1) Zone during the period of November 1991 through June 1997 and not meeting the Yard and Lot Area Table set forth in §61501 of this Chapter shall be deemed as a legal nonconforming building and continue as a legal nonconforming use of the land under its designated zone. (b) The property owners or authorized representative shall bear the burden of proof that the building or structure was constructed sometime during the period of November 1991 through June 1997. The Guam Chief Planner shall verify and ascertain the eligibility of the building or structure as a legal nonconforming building and submit his findings to the Director for action. The Director, within five (5) working days, shall record a Notice of Action document of his determination. (c) The interpretation and application of §61526(a) shall be held to be the minimum requirement subject to all MINA'BENTE SIETE NA LIHESLATURAN GUÅHAN file:///D/HTML/gum68373.htm[15.01.2025 17:38:05] other provisions within this Chapter prior to the enactment of Public Law 24-51.” Section 4. Part 5 of Chapter 61 of Title 21 of the Guam Code Annotated, is hereby repealed and reenacted to read as follows: “Part 5 Fees §61660. Filing Fees. The Commission shall establish a schedule of fees required for the filing of any application or for any services provided to carry out the requirements of this Chapter following the requirements of Chapter 9 of Title 5 of the Guam Code Annotated, the Administrative Adjudication Law.” Section 5. Severability. If any of the provisions of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect any other provision or application of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.