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LAKESIDE 1ST BK 1 LT 7B - Land Disposalz vsc �Vo)/44 8545°o1' 17"W -=i5•!1:151.;1, g45' O S Ii{ Cry)-- .---------.. _: l f�r g Eru •i 4N.61'13'.en------ icArte•P-14,78-- 545001'17"W .LOT -7 GREENBELT 'LOT -6 a-. O V. O 1.2036 ACS y a \� 0 o \t. 3C 0 J O -448 08 08 E asmaameliehosingar 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 • / / / VAs. / •••• 1.110 otc+ mo• •••• ••• 2 6 a „. .113842' L.115.02: a.449.90 "B0• s .4831'41' itIPLST L27.28 ••• ••• .21..,. 0.379.00 L.234 36 21,15. L.274.28 ••• 40- ••• ••• 42. .2 .387 .289.74- g2 „a.'" 1C. 1-.17191.‘ ptS • • 47,01.17.4. LI27.7 1.15120 ACS. ; 1' 1.6 1.0 010 •• Oa .Me Oe 08 737.011 cox...Amen/ ••• Of 77 a( z • 5: 1.43'1 31.40 70.9EP4 rum .• • am Ma .11•••• • aira •••••• •-• 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 T. A • 4,1:4* f.;. • \/ .r • � AMMO IMPWW VA, ar AMITAIV IiemavrAvir wore- / 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 A --, '7-155.80 45'01'17 •39'57 R or 5 21 0 S45°01'7" Noretawnek6 Avrslr•-r-„ag ff-dir /41 • — 0 1.0T-6 1 oz# c 1.2036 A ) T r- - o D • J 0 6"Peh/ r. 0.0 O.0 186.28 0 •N48 08 08. E -N48 08 08 f