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WESTERN ALASKA LAND TITLE CO.
503 Marine Way, Suite 3-B P.O. Box 864 Kodiak, Alaska 996.15
(907) 486-4433 Fax (907) 486-5109
CERTIFICATE TO PLAT
To: KODIAK ISLAND BOROUGH
ATTN: BUD CASSIDY
710 MILL BAY ROAD
KODIAK, AK 99615
Date: November 17, 1997
Amount due $250.00
No. WA -10816
That title to the property described herein is vested on the date shown above in KODIAK ISLAND BOROUGH, a
municipal corporation, an estate in fee simple, subject only to the exceptions shown herein.
This report shall have no force or effect except as a basis for the c erage specified herein.
DESCRIPTION:
By
Timothy J. Hurley Validating Signatory
LOT SEVEN (7), BLOCK ONE (1), LAKESIDE SUBDIVISION, ACCORDING TO PLAT 86-35, LOCATED IN THE
KODIAK RECORDING DISTRICT, THIRD JUDICIAL DISTRICT, STATE OF ALASKA.
- continued -
NOTE: investigation should be made to determine if there are any service, installation, maintenance, or construction charges for sewer, water or electricity.
•
WESTERN ALASKA LAND TITLE COMPANY
ORDER NUMBER WA -10816
PAGE TWO
SUBJECT TO:
1. Reservations contained in United States Patent.
2. Reservations contained in the State of Alaska Patent.
3. Said lot seven (7) is designated as "Greenbelt" of face of said plat. Such designation could impress said
lot with a public trust character, and consequently, any lot owner in the subdivision has a private right to
have the area used as platted and may obtain a court order forbidding any other use.
RJW/an
12/03/97
wa-10816
MATTHEW D. JAMIN
C. WALTER EBELL
JOEL H. BOLGER
DIANNA R. GENTRY
ALAN L. SCHMITT
JAMIN, EBELL, BOLGER & GENTRY
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
P. O. BOX 4269
KODIAK, ALASKA 99615
September 22, 1987
..„
Bud Cassidy
Resource Management Officer
Kodia)c. Island Borough
710 Mill Bay Road
Kodiak, Alaska 99615-6340
RE: Okey Chandler Dedication
Dear Bud:
TELEPHONE
AREA CODE 907
486-6024
CliMt;M:TY
DVLf.Tql nEPT,
This letter is in response to your questions contained in
your letter of August 31, 1987 to Matt Jamin. Upon review of the
documents you provided it appears that Mr. Chandler subdivided
Block 2 of Tract D of United States Survey 1672 in 1975. As part
of the subdivision Mr. Chandler dedicated Lot 9 of Block 2 as
"moorage" for "public use."
ecently Mr. Chandler submitted an application for the vaca-
tion and replat of Lot 9 that would incorporate the dedicated lot
into Lot 10 which Mr. Chandler presently holds in private owner-
ship. You raise several questions about the effect of this
application.
FIRST QUESTION PRESENTED: Does the property dedicated for
public use as stated in the ownership affidavit of the 1975 plat
imply ownership by the Kodiak Island Borough?
ANSWER: The area dedicated by Mr. Chandler passed into
Borough ownership upon dedication with the public use of the
property limited as specified in the certificate. This result is
mandated by AS 40.15.030 as follows:
Section 40.15.030. Dedication of Streets, Alleys, and
Thoroughfares. When an area is subdivided and a plat
of the subdivision is approved and recorded, all
streets, alleys, thoroughfares, parks and other public
areas shown on the plat are deemed to have been
dedicated to public use.
SECOND QUESTION PRESENTED: Mr. Chandler dedicated these
lots to the public on the plat. Does he have the authority to
replat these lots in such a manner to eventually dispose of them?
Bud Cassidy, Resource Management Officer
September 22, 1987
Page 2
ANSWER: Mr. Chandler does not have the authority to
unilaterally replat these lots. The vacation of an area
dedicated for public use must follow procedures which are set
forth by statute and ordinance.
DISCUSSION: The vacation of an area dedicated on a recorded
plat must follow the statutory procedures set forth in AS 29.40.
120 - 140 as follows:
Section 29.40.120. 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. A
platted street may not be vacated, except on petition
of the state, the borough, a public utility, or owners
of a majority of the land fronting the part of the
street sought to be vacated. 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.
Section 29.40.130. Notice of Hearing. The platting
authority shall fix a time for a hearing on an
alteration or replat petition that may not be more than
60 days after the petition is filed. Notice shall be
published by the platting authority stating when and by
whom the petition was filed, its purpose, and the time
and place of the hearing. The notice shall generally
describe the alteration or replat sought. The platting
authority shall also mail a copy of the notice to each
affected property owner who did not sign the petition.
Section 29.40.140. Hearing and Determination. (a) The
platting authority shall consider the alteration or
replat petition at a hearing and make its decision on
the merits of the proposal. . .
The procedure for approval of a vacation request is also
governed by Chapter 16.60 of the Kodiak Island Borough Code. The
commission is instructed to presume the area being vacated to be
of value to the Kodiak Island Borough. The burden of proof lies
with the petitioner. KIBC 16.60.010.
A platted street may not be vacated except upon petition of
the owners of a majority of the land fronting the part of the
street sought to be vacated. KIBC 16.60.020. The applicant must
submit a written statement containing the reasons in support of
the vacation and a map illustrating the area to be •vacated to the
borough engineer by the deadline established for the commission
Bud Cassidy, Resource Management Officer
September 22, 1987
Page 3
agenda. KIBC 16.60. 030.
The commission is required to take action on the vacation
application within 60 days and the applicant may thereafter
perfect an approved application by filing a plat depicting the
vacation. The vacation and replatting of the area must conform
to the applicable preliminary and final plat procedures. KIBC
16.60.040.
A decision to grant a vacation is not effective unless it is
approved by the assembly if the vacated area is within the
borough area outside a city. KIBC 16.60.060. The assembly has
30 days from receipt of the decision approving a vacation to veto
the vacation. In the absence of a veto the consent is considered
to have been given. KIBC 16.60.060.A.
Under the statutory procedure a petition for replat may be
made only by a public body or the owners of a majority of the
land effected by the alteration or replat. I believe that under
these circumstances the petition should be made at least by the
owners of a majority of the land contained in Block 2.
THIRD QUESTION PRESENTED: For the purposes of filing a plat
on this publicly dedicated property with the Borough, do those
lot owners on Anton Larsen Island who have a vested interest in
these public lots need to approve such a. concept? Should those
same landowners have a signature line on the plat?
ANSWER: There is no need for a signature line on the plat.
The petition for vacation must be made by the owners of a major-
ity of the land included in Block 2 under AS 29.40.120. The
owners of other lots in Block 2 should be given notice of the
hearing on the petition pursuant to AS 29.40.130.
FOURTH QUESTION PRESENTED: If the area included in Lot 9 of
Block 2 is vacated, to whom does the title pass?
ANSWER: The statute which controls the title to this
property upon vacation is not clear but a reasonable interpreta-
tion is that the title would vest in Okey Chandler as the party
who originally dedicated this lot.
DISCUSSION: The question of title to an area which is
vacated is related to a certain extent to the type of title which
the public takes upon dedication. Generally a dedication on a
plat conveys an easement for public use. In some jurisdictions a
dedication as required by statute vests a fee simple title to the
property in the municipality as the statute may provide. The
Alaska Statute does not specifically state that fee simple title
in the property transfers to the municipality and there are no
Bud Cassidy, Resource Management Officer
September 22, 1987
Page 4
Alaska Supreme Court cases on this issue.
The title to a vacated area is generally governed by AS 29.
40.160 and KIBC 16.60.050. If the area to be vacated is a
"public square" the title remains with the Kodiak Island Borough.
KIBC 16.60.050. If the area to be vacated is only a "lot" the
title vests in the "rightful owner." AS 29.40.160. The phrase
"rightful owner" is not defined by statute.
In the absence of a statutory definition of the "rightful
owner" who is entitled to title to a vacated lot, we must engage
in some statutory construction. AS 29..40.160(a) provides that
the title to a street or "other public area" vacated on a plat
attaches to the lot or lands border the area in equal propor-
tions. As noted, if a public square is vacated the title vests
in the municipality.- Finally if the property vacated is a "lot"
title vests in the rightful owner.
If we assume that the provisions of AS 29.40.160(a) are not
redundant, the legislature intended the terms "street or other
public area", "public square" and "lot" to define different
situations. Likewise the provision for the attachment of title
to bordering lots, the attachment of title to the municipality
and the attachment of title to the "rightful owner" should be
considered to have different meanings.
For example, if the legislature intended that a vacated
"lot" should be transferred to the adjoining land owners, it
could'easily have done so by incorporating the provisions for the
title to a "lot" into the first sentence of the subsection which
defines the passage of title to a "street or other public area."
Assuming that the "rightful owner", therefore, is not neces-
sarily the adjoining land owner or the municipality, it appears
that the remaining alternative would be the party who originally
dedicated the land or his successor in interest. This rule is
consistent with the "easement" concept of a public dedication
which is applied in a majority of the jurisdictions which do not
require the passage of title by statute. In the absence of any
contrary indication, I believe that the legislature intended the
phrase "rightful owner." to be the party who originally dedicated
the property, in this case Okey Chandler.
Bud Cassidy, Resource Management Officer
September 22, 1987
Page 5
Feel free to contact me if you have any further questions.
Sincerely yours,
JAMIN, EBELL, BOLGER & GENTRY
Joel H. Bolger
Attorney
cc: Jerome Selby, Borough Mayor
Dave Crowe, Borough Engineer
Bob Pedersen, Associate Planner
P.S. At Jerome's suggestion I am drafting a sales agreement for
Okey to use to make his sale contingent on replat.
4095\45L.001
WESTERN ALASKA LAND TITLE CO.
503 Marine Way, Suite 3-B P.O. Box 864 Kodiak, Alaska 99615
(907) 486-4433 Fax (907) 486-5109
CERTIFICATE TO PLAT
To: KODIAK ISLAND BOROUGH
ATTN: BUD CASSIDY
710 MILL BAY ROAD
KODIAK, AK 99615
Date: November 17, 1997
Amount due $250.00
No. WA -10816
That title to the property described herein is vested on the date shown above in KODIAK ISLAND BOROUGH, a
municipal corporation, an estate in fee simple, subject only to the exceptions shown herein.
This report shall have no force or effect except as a basis for the c • erage specified herein.
DESCRIPTION:
By
Timothy J. Hurley Validating Signatory
LOT SEVEN (7), BLOCK ONE (1), LAKESIDE SUBDIVISION, ACCORDING TO PLAT 86-35, LOCATED IN THE
KODIAK RECORDING DISTRICT, THIRD JUDICIAL DISTRICT, STATE OF ALASKA.
- continued -
NOTE: Investigation should be made to determine if there are any service, installation, maintenance, or construction charges for sewer, water or electricity.
WESTERN ALASKA LAND TITLE COMPANY
ORDER NUMBER WA -10816
PAGE TWO
SUBJECT TO:
1. Reservations contained in United States Patent.
2. Reservations contained in the State of Alaska Patent.
Said lot seven (7) is designated as "Greenbelt" of face of said plat. Such designatiori could impress said
lot with a public trust character, and consequently, any lot owner in the subdivision has a private right to
have the area used as platted and may obtain a court order forbidding any other use.
RJW/an
12/03/97
wa-10816
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KODIAK ISLAND BOROUGH
RESOLUTION NO. 85-75-R
A RESOLUTION OF THE KODIAK ISLAND BOROUGH ASSEMBLY RECOMMENDING THE
DISPOSAL OF CERTAIN BOROUGH PROPERTIES.
WHEREAS, Title 18 of the Borough code requires that the disposal of
' Borough land be reviewed by the Planning and Zoning Commission, and
WHEREAS, Title 18 of the Borough code requires that the Commission, by
resolution, shall make a recommendation to the Assembly regarding this proposed
• land disposal, and
WHEREAS, the Kodiak Island Borough is obligated to place surplus,
publicly -owned lands into the private sector, and
WHEREAS, the Borough owns land suitable for disposal to the public.
NOW, THEREFORE, BE IT RESOLVED that the Kodiak Island Borough Assembly
declares the following parcels excess to the Borough's needs and therefore
available for disposal:
1. Lot 8, Block 1, Lakeside Subdivision;
2. Lots 1-19, Block 2, Lakeside Subdivision;
3. Lots 4-9 and Lot 11, Block 3, Lakeside Subdivision; and
4. Block 3, Lakeside Subdivision, First Addition.
1
PASSED AND APPROVED this 3rd day of
ATTEST:
Bv :44
Deputy Borough Clerk
October
KODIAK ISLAND BOROUGH
, 1985.
orough Mayor
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Case No. S-84-016, Revised Preliminary Plat:
LAKESIDE SUBDIVISION: Lots 1-8, Block 1;
Lots 1-19, Block Z; and Lots 1-11, Block 3
(Revised April 22, 1985)
Creating Residential lots in Block 2; and
Greenbelts in Block 2 and Block 3
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