USS 1672 TR A-2B LARSEN ISLAND - Property Card•
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ALAN L. SCHMITT
ATTORNEY AT LAW
ADMITTED TO ALASKA BAR
JAMIN SCHMITT ST. JOHN
• •worr000N•L COIWORATIOI
ATTORNEYS AT LAW
323 CAROLYN STREET
KODIAK. ALASKA 99615
July 24, 2006
VIA CERTIFIED MAIL - RRR
Myrtle Margaret Olsen
3736 Gull Drive
Kodiak, Alaska 99615
Gordon L. Jensen, Jr.
3701 Gull Drive
Kodiak, Alaska 99615
TELEPHONE: (907) 4866024
FAX: (907) 486-6112
E -MAIL: al an@ j esmkod . mom
FILE COPY
RE: Illegal Subdivision of Tract A -2, U.S. Survey 1672
Our file 4702 -950
Dear Ms. Olsen and Mr. Jensen:
My firm represents the Kodiak Island Borough. Under state law (AS 40.15.010) any
proposed subdivision of land within our borough is to be submitted for approval to the
Kodiak Island Borough. In relevant part, state law defines a subdivision as "the division of
a tract or parcel of land into two or more Tots" (AS 40.15.900(5)(A)).
On May 31, 2006, a quitclaim deed was recorded with the Kodiak District Recorder
by which Ms. Olsen attempted to transfer title to a portion of Tract A -2, U.S. Survey 1672
to Mr. Jensen. However, because there was no subdivision of Tract A -2 approved by the
Kodiak island Borough. this is an illeeal subdivision. For your reference, a copy of this
three page document is enclosed.
It will be better for all concerned if you resolve this without litigation. Hence, by this
letter I am giving you thirty (30) days to present to the Community Development
Department of the Kodiak Island Borough a preliminary plat of the proposed subdivision
in accord with the borough code. Before doing this you should speak with staff in the
Community Development Department to assure that your preliminary plat is in the
appropriate form. You will also need to diligently pursue the final approval and recording
of the plat. After that has occurred, you will need to prepare and record a corrected
quitclaim deed which, in the legal description of the property, refers to the newly recorded
plat. It may take more than thirty (30) days for you to accomplish each task. It is the intent
of this letter to encourage you to begin the process promptly and then to pursue it diligently
Letter to Myrtle Margaret Olsen and Gordon L. Jensen, Jr.
July 24, 2006
Page 2 of 2
until all tasks have been accomplished.
In the event you have not presented a preliminary plat to the borough's Community
Development Department within thirty (30) days, I will assume that you have chosen not
to do so. On behalf of the borough, I will then file a lawsuit against you to seek the
injunctive and monetary relief mentioned in Kodiak Island Borough Code section
16.10.030, a copy of which is also enclosed. In all likelihood, the court will order you to
properly subdivide Tract A -2. As alternative relief, the borough may ask the court for the
authority to accomplish the subdivision along the lines of what was recorded in May
(assuming it otherwise meets the borough's subdivision requirements) and award the
borough a judgment against you for the penalty plus all costs and fees associated with
doing so. In the event it is not possible to accomplish the subdivision, we will ask the court
for an order declaring the May 30, 2006 quitclaim deed to be null and void as well as a
judgment against you for the penalty plus all costs and fees.
As part of the lawsuit and while it is pending, I will cause to be recorded a lis
pendens. This lis pendens will basically be a lien on Tract A -2. Furthermore, any
judgment obtained against you which will also be recorded and it will serve as a lien on ALL
real property you may own in the borough. Lastly, relative to the lawsuit, Alaska law allows
that prejudgment interest on the monetary award will start from the date of this demand.
I trust that you will elect to avoid the threatened litigation. Again, I encourage you
to do so. If you have any questions, please let me know.
Sincerely yours,
JAMIN SCHMITT ST. JOHN
Alan L. Schmitt
cc: Martin Lydick, KIB Associate Planner
Rick Gifford, Borough Manager
F:IWP\CLIENTS14 7 0 219 5 0 Olsen- Jensen Illegal Subd\letter olsen- jensen 1.wpd
16.10.030 -- 16.10.050
Final approval of the replat shall be obtained within six (6) months of the acquisition. The
commission shall treat applications for replat made by state or local governmental agencies in the
same manner as replat petitions originated by private land owners.
E. No person may file a plat or seek to have a plat filed unless it bears the approval of the
borough. A person who knowingly violates this requirement is punishable upon conviction by a
fine of not more than three hundred (300) dollars.
F. The borough or any aggrieved person may bring a civil action to enjoin any violation of
this title, any transfer or sale of an unlawfully subdivided parcel, the violation of any term or
condition of any plat or other entitlement approved under this title, and to obtain damages for any
injury the plaintiff suffered as a result of the violation. An action for injunction under this
section may be brought notwithstanding the availability of any other remedy. Upon application
for injunctive relief and a finding of an existing or threatened violation, the superior court shall
enjoin the violation. (Ord. 90 -15 §2 (part), 1990).
16.10.040 Alteration or replat petition. A recorded plat may not be altered or replatted except
by the platting authority on petition of the state, the borough, a public utility, or the owners of
a majority of the land affected by the alteration or replat. The petition shall be filed with the
platting authority and shall be accompanied by a copy of the existing plat showing the proposed
alteration or replat. (Ord. 90 -15 §2 (part), 1990).
16.10.050 Waivers. No subdivision shall be approved by the borough except upon the
submission of a plat prepared in accordance with chapters 16.40 and 16.50 of this title, except
that:
A. Pursuant to AS 29. 40. 090(b), the community development department director shall waive
the preparation, submission for approval, and recording of a plat upon satisfactory evidence that
the subdivision meets the following requirements.
1. the subdivision may divide a single lot into not more than four (4) lots. Each lot
created by the subdivision must be five (5) acres or larger in size;
2. the subdivision must provide legal and physical access to a public highway or street
for each lot created. For purposes of this section, practical access to a navigable waterway is
equivalent to access to a public highway. A waiver applicant must demonstrate to the community
development department director that proposed access can be constructed practically and
economically from any navigable waterway to a building site that is consistent with Title 17
Zoning, of this code, requirements;
3. the subdivision may not contain or require the dedication of a street, right -of -way, or
other area;
4. the subdivision may not require a vacation of a public dedication of land or a variance
from a subdivision regulation; and
5. a waiver application must include a certificate by the clerk that all taxes assessed and
due against the property and in favor of the borough have been paid in full.
B. Application for a waiver shall contain a sketch depicting the lots to be created, the general
location of the lots to be created (vicinity map), adjoining parcels, and proposed access.
16 -3
(KIB 06/2004)
Supp. #40
44
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TRACT A -2A
"T. 01 ACRES
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TAX CERTIFICATE
/ hereby certify that, accard,ng to the records of the
Kodiak Island Borough, al/ taxes assessed and due
a- ainst maid /and and in for of the ff disk /s /end
re paid in {colt. ����dd,,
,Alaska, ,his/ida of
PLAT APPROVAL
Kodiak /s /end Borongqh planning and Zoning Commisex>,r+
Rece/v 13 -2D Ve Approved 4- IE -2401S
chard 4sr Diva KA• s Date 2( APr; I ,dA
Thies is to certify Me within plat is duly approved in
accordance with odrek /a /and Borough Municipal Cade
Chisel L dry of / ,LO
Borough Manager
Borough C /el- /• i. r '�r •ate 11,-,)
Comrnun/ � Data i1 �'Oi
Development Director
VICINITY MAP
•JCALE•i••1 MILE
OWNER.YI4IP AFFIDAVIT
We hereby certify that we era the owners of the property
shown and described hereon. hie hereby regueet approve/
of this plat.
Late 4 zl Z"6B
Late .21, IfIde
NOTARY ACKNG/WLEDGINENT3
3 6s ibed and sworn to before me thisday of
1+ �raran, L • cjencen ,
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My commission exp/res
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aURVEYOa•A CEIR.TIFIGALES
/ hereby csrfify fh.t 1 am popar /y r.g.ster.d And lr.ensed
to proefica /and surveying in /ha State of Alaska and the/
ihie plat nprosants a survey mad. by nvs or under my dr,aot
8Lprvis,on, and that the monuments shown hereon actually
cast as shown, and that all dimensions/ and other date /ls
areic;ornmot.
Date ,, 2048
P.g/stered Lend Surveyor
Registration Number
6-7T-v
My eonvrnission empire.
LEGEND
• • /ti' die alumvwm cap on We dm rebel- set Wfrs survey.
o•/ 'd•a a /um•nurn cep recovered 11 '! survey.
P_E& P P FOP: OQ' DEN ✓ENSEIV
370/ Gut/ Drive , Kodiak ,A/sake 996/3
VACATION Of TRACT A- 2, U, S SURVEY /672
AMENDED, PL AT NUMDER 90 - 45
CREATING,
TRACTS A- 2A and A -2B
aasiheYFY /572 AA l.IDEL2
ON LARSEN /SLANG
W1TI11W KOOIAK RECORDIN4 DISTRICT
KODIAK ALASKA
IID0.1LLW LAND SURVEYIIIG,IIIL
pO. Box 4945
Kad/ak, A/aeks 9.96/3
DRAWN Tf 9, Aus/erman
DATE
5cALi • /" • 200 fee r
RGF. fi /e C..ENSEN
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