2019-08-29 Work Session
Kodiak Island Borough
Assembly Work Session
Thursday, August 29, 2019, 6:30 p.m.
School District Conference Room
Work Sessions are informal meetings of the Assembly where Assembly members review the upcoming
regular meeting agenda packet and seek or receive information from staff. Although additional items not
listed on the work session agenda are discussed when introduced by the Mayor, Assembly, or staff, no
formal action is taken at work sessions and items that require formal Assembly action are placed on
meeting.
Page
1. (Limited to Three Minutes per Speaker)
2. AGENDA ITEMS
3 - 73 a. Discussion Regarding Code Enforcement Process
Output Document (AS - 1019) - Pdf
74 - 88 b. KIB Ordinance FY2019-20 Amending Chapters 17.160 KIBC
(Accessory Buildings and Accessory Dwelling Units), And
Related Chapters 17.65 KIBC (RR - Rural Residential District)
and 17.70 KIBC (RR1 - Rural Residential One District) To
Change Permitted Uses, Conditional Uses and Development
Standards Related to Parking and Size Limit.
Output Document (AS - 1038) - Pdf
Ordinance No. FY2019-20 ADU Version 1
3. MANAGER COMMENTS
4.
89 a. Clerk's Comments for August 29, 2019
Clerk 08292019
5. PACKET REVIEW
Items may be added during the work session for inclusion on the Regular Meeting agenda. The
item title needs to be provided/developed at the work session in enough detail to give assembly
and public reasonable notice.
PRESENTATION
Six Month Presentation - Fire Protection Area No. 1
Visit our website at
www.facebook.com/Kodiakislandborough @KodiakBorough
www.kodiakak.us
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Chief Howard S. Rue III
PUBLIC HEARING
Ordinance No. FY2019-20 Amending Chapters 17.160 KIBC
(Accessory Buildings and Accessory Dwelling Units), And Related
Chapters 17.65 KIBC (RR - Rural Residential District) and 17.70 KIBC
(RR1 - Rural Residential One District) To Change Permitted Uses,
Conditional Uses and Development Standards Related to Parking and
Size Limit.
Ordinance No. FY2020-03 Amending 9.10.040 Use Prohibited To
Prohibit The Discharge Of Fireworks At Mill Bay Beach
Ordinance No. FY2020-05 Establishing a Research Court Apartments
Enterprise Fund (Formerly Known As Kodiak Fisheries Research Center
(KFRC) Dorms).
NEW BUSINESS
CONTRACTS
RESOLUTIONS
Resolution FY2020-07 Authorizing The Borough To Issue A Refunding
Revenue Bond To Refund Certain Principal Installments Of The
Outstanding Long-Term Care Center Revenue Bond, Series 2013
(Providence Kodiak Island Medical Center), Of The Borough And To
Pay Costs Of Issuing The Bond, Fixing Certain Details Of Such Bond,
Authorizing Its Sale, And Providing For Related Matters
ORDINANCES FOR INTRODUCTION
OTHER ITEMS
Approval Of The October 1, 2019 Regular Municipal Election Workers
As Listed In The Memo Submitted By The Borough Clerk.
Letter Of Support For The 2020-2023 Community Transportation
Program (CTP) Grant By The Alaska Department of Transportation &
Public Facilities (ADOT/PF).
Confirmation of Assembly Appointment To The Kodiak Fisheries
Development Association (Mr. Stosh Anderson).
EXECUTIVE SESSION
6. ASSEMBLY MEMBERS COMMENTS
7.
Visit our website at
www.facebook.com/Kodiakislandborough @KodiakBorough
www.kodiakak.us
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AGENDA ITEM #2.a.
KODIAK ISLAND BOROUGH
STAFF REPORT
AUGUST 29, 2019
ASSEMBLY WORK SESSION
SUBJECT: Discussion Regarding Code Enforcement Process
ORIGINATOR: Erin Welty
RECOMMENDATION:
For Assembly Discussion
DISCUSSION:
The Assembly most recently discussed the implementation of the Uniform Minor Offense
Table (UMOT) process at work sessions on March 28, 2019 and April 12, 2018. In order
to facilitate continued discussion, staff is presenting several ordinances and resolutions,
as well as relevant regulatory and guidance documents, which are outlined in the
attached memo.
It is anticipated that this discussion will provide staff with additional direction and that
several follow-up work session discussions will be needed prior to the actual
implementation of UMOT.
ALTERNATIVES:
FISCAL IMPACT:
OTHER INFORMATION:
Kodiak Island Borough
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AGENDA ITEM #2.a.
KODIAK ISLAND
BOROUGH
OFFICE OF THE MANAGER
DATE: July 17, 2019
TO: Borough Mayor and Assembly
FROM: Borough Manager
SUBJECT: Code Enforcement/Uniform Minor Offense Table Discussion
______________________________________________________________________
At its March 28, 2019 Work Session the Assembly discussed the Uniform Minor Offense
Table (UMOT) process for enforcing specific code violations. Several takeaway points
came from that discussion:
1) There is a need for policy level discussion on existing code (e.g. tethering of
animals).
2) Borough staffs policies and procedures for code enforcement (both UMOT and
non-UMOT) should be adopted by resolution.
3) More discussion on the proposed ordinance modifying code enforcement
language and incorporating a schedule of fines needs to occur at work sessions
prior to placement on a regular meeting agenda.
4) Several Assembly members prefer the removal of the term peace officer from
Borough documents.
Additionally, staff received the following direction:
1) Review and update the existing code enforcement procedures and incorporate
them into the proposed resolution for UMOT-related code enforcement
procedures.
2) Provide the Assembly with additional information on Borough ordinances and
State law pertaining to the confidentiality of records relating to code violations.
For this work session, the primary goals are to:
1) Review the current enforcement procedures, as adopted by Resolution No. 91-20
and discuss potential changes.
2) Review the proposed UMOT enforcement procedures and discuss potential
changes.
3) Review and discuss the ordinance modifying code enforcement language as a
standalone draft ordinance.
4) Review and discuss the schedule of fines as a standalone draft ordinance.
1
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Attachments:
A. Relevant State and Borough statutes, regulations and guidance documents
B. Draft enforcement procedures resolution
C. Draft ordinance updating enforcement language
D. Draft ordinance implementing a new schedule of fines
2
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ALASKARULES OF COURT
ALASKA RULES OF MINOR OFFENSE PROCEDURE
Table of Contents
Rule
1 Scope, Purpose, and Construction.
2 Minor Offense Defined.
3 Citation.
(a) Charging Document.
(b) Uniform Table of Minor Offenses.
(c) Content and Format.
(d) Adequacy of Citation.
(e) Social Security Number.
(f) Required Statements.
(g) Methods of Service of Citation.
(1) Offenses Requiring Personal Service.
(2) Other Offenses.
(3) Proof of Service.
(h) Corporations, Limited Liability Companies and Other Entities.
(i) Authority of Clerk.
4 Minor Offenses Not Charged on a Citation.
5 Optional Court Appearance.
5.1 Request for Judgment by Municipality
6 Mandatory Court Appearance.
7 Pleas.
7.1 Motions; Requests to Reschedule Hearing or Trial.
8 Defendants Under 18.
9 Failure to Respond or to Appear.
(a) Failure to Respond to Citation.
(1) Default Judgment.
(2) Warning Notice Requirement.
(3) Citations Filed With Municipalities.
(b) Failure to Appear After Summons.
(c) Failure to Appear for Trial.
(d) Bench Warrants Prohibited.
10 Judgment, Costs, Fees, and Relief from Default Judgment.
(a) Fine.
(1) After Plea or Trial.
(2) Default Judgment.
(b) Surcharge.
(c) Forfeiture.
(d) Restitution.
(e) Court Costs for Default Judgments.
(f) Collection Costs All Judgments.
(g) Relief from Default Judgment.
(h) Authority of Clerk.
(i) Disposition of Records of Conviction.
11 Dismissal and Deferred Prosecution.
(a) By Prosecuting Attorney.
(b) By Court.
(c) Identity Error in Charging Document.
(d) Deferred Prosecution.
12 Non-Attorney Representation.
(a) Representation of State or Municipality by Non-Attorney.
(b) Corporations.
13 Temporary Transfer of Minor Offense Cases.
14 Change of Venue.
15 Speedy Trial When Time Commences to Run.
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ALASKA COURT RULES
16 Peremptory Challenges.
17 Minor Offense Joined with Related Criminal Offense.
18 Minor Offenses that Must be Filed as Alcohol Underage Cases.
19 Telephonic Participation in Minor Offense Cases.
20 Form of Judgment.
(a) Electronic Record Is Official Judgment.
(b) Content.
21 Commencement of Time for Appeal; Writ of Execution.
(a) Commencement of Time for Appeal.
(1) Judgment Based on No Contest Plea.
(2) Default Judgment.
(3) Judgment Entered in Open Court.
(4) Matters Taken Under Advisement.
(b) Writ of Execution.
22 Electronic Citations in Minor Offense Cases.
(a) Authorization for Filing Citations Electronically.
(b) Electronic Signature.
23 Exhibits
2
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AGENDA ITEM #2.a.
ALASKA RULES OF MINOR OFFENSE PROCEDURE Rule 1
(b) Uniform Table of Minor Offenses. The citation
Rule 1. Scope, Purpose, and Construction.
must include the statute, regulation, or ordinance that the
defendant is alleged to have violated, as identified in the
These rules govern the procedure in cases involving minor
uniform table of minor offenses maintained by the court
offenses, except as provided in Rule 17 and Rule 18. They are
system.
intended to provide for the just determination of these cases
and to that effect shall be construed to secure simplicity and
(c) Content and Format. The administrative director
uniformity in procedure, fairness in administration, and the
shall establish content and format requirements for minor
elimination of unjustifiable expense and delay.
offense citations by administrative bulletin, including require-
ments that the citations include:
(Rescinded and readopted by SCO 1794 effective April 15,
2013; renamed and renumbered by SCO 1797 effective
(1) the essential facts constituting the offense charged,
April 15, 2013; and amended by SCO 1895 effective
November 1, 2016)
(2)
12.25.200,
Rule 2. Minor Offense Defined.
(3) the procedure for responding to the citation,
Any offense that meets one of the definitions below is a
minor offense, including an offense that is classified as a
(4) the consequences of a failure to respond,
misdemeanor by statute, regulation, or ordinance. An offense
is not a minor offense under these rules if the only penalty is a
(5) if forfeiture of seized items is authorized by statute or
civil penalty. As used in these rules, minor offense means
ordinance, the citation must list the seized items and state that
they will be forfeited if defendant waives appearance by
(a) an offense classified by statute as an infraction or a
entering a no contest plea or if a default judgment is entered,
violation; or
and
(b) any offense for which a bail forfeiture amount has
(6) the method used to serve the citation on the
been authorized by statute and established by supreme court
defendant.
order; or
(d) Adequacy of Citation. If a citation meets the
(c) any municipal motor vehicle or traffic offense for
requirements set forth in the bulletin, it is presumed to provide
which a fine amount has been established in a fine schedule
adequate notice of the charges, the defendant's rights listed in
adopted by municipal ordinance under AS 28.05.151; or
AS 12.25.200, the procedure for responding to the citation, the
consequences of failure to respond, and the potential for
(d) any offense under a municipal ordinance for which a
forfeiture. In addition, all citations filed with the court must
conviction cannot result in incarceration or the loss of a
comply with any standards adopted by the Department of
valuable license and for which a fine schedule has been
Public Safety under AS 12.25.175.
established under AS 29.25.070(a); or
(e) Social Security Number.
(e) any offense under statute or municipal ordinance for
security number may not appear on a citation. This subsection
which a conviction cannot result in incarceration, a fine greater
applies to citations issued on or after April 15, 2013.
than $1,000, or the loss of a valuable license; or
(f) Required Statements. The officer must state on the
(f) any fish and game offense in 5 AAC charged as a
citation that the officer has probable cause to believe the
strict liability offense; or
defendant committed the offense but need not state the grounds
for the probable cause determination beyond the essential
(g) any commercial fishing offense listed in AS
facts. The officer must certify, under penalty of perjury, that
16.05.722 or 5 AAC charged as a strict liability offense
the information in the citation is true and that the officer served
(classified in AS 16.05.722 as a violation).
the citation on the defendant as required by AS 12.25.175-
12.25.190.
(Rescinded and readopted by SCO 1794 effective April 15,
2013; renamed and renumbered by SCO 1797 effective
(g) Methods of Service of Citation.
April 15, 2013; and amended by SCO 1892 effective
August 15, 2016)
(1) Offenses Requiring Personal Service. The issuing
officer must personally serve the citation on the defendant by
Rule 3. Citation.
handing the citation to the defendant if the citation charges one
of the following:
(a) Charging Document. The charging document for a
minor offense may be in the form of a citation. Each citation
(A) an offense involving a moving motor vehicle,
may name only one defendant and only one offense. Except as
provided in subsection (h) below, a citation must name an
(B) an offense punishable by a fine of more than
individual as the defendant. Citations may not be filed with the
$500, or
court until the defendant has been served.
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Rule 4 ALASKA COURT RULES
(C) a violation of AS 04.16.050 or similar ordinance (4) the citation lists more than one defendant, lists more
of a municipality. than one offense, or fails to name the defendant as required by
subsections (a) and (h);
(2) Other Offenses. For all other offenses, the citation
may be served by one of the following methods: (5) the citation does not list the name of the person who
was served on behalf of the entity described in subsection (h);
(A) personal service as provided in (1) above;
(6) the citation does not state the method of service;
(B) property service under AS 12.25.175(d)(1) by
leaving the citation in a conspicuous place on the vehicle (7) proof of service of the citation is not provided, if
or other personal or real property that was the subject of required by paragraph (g)(3) of this rule because the citation
the infraction or violation; or was served by a method other than personal service or property
service;
(C) any other method of service allowed by Civil
Rule 4, including: (8) the form of the citation does not meet the
requirements of this rule or Administrative Bulletin 83; or
(i) other methods of personal service by an officer,
a process server, or other person authorized to serve (9)
process as provided in Civil Rule 4(d); or number, or the date of issuance is missing.
(ii) certified mail, restricted delivery, with return **The Uniform Minor Offense Table (UMOT) is
receipt requested as provided in Civil Rule 4(h). If maintained by the Alaska Court System. It is available on the
certified mail is used, the postal return receipt shall be
addressed so it is returned to the person serving the http://courts.alaska.gov/trialcourts/umot.htm
citation. Service of process by mail is completed when the
(Rescinded and readopted by SCO 1794 effective April 15,
return receipt is signed.
2013; renamed and renumbered by SCO 1797 effective April
(3) Proof of Service. If the citation was served by any 15, 2013; amended by SCO 1827 effective June 24, 2014; by
method in subparagraph 2(C), proof of service must be filed SCO 1895 effective November 1, 2016; and by SCO 1909
with the citation. The proof of service must set forth the effective June 21, 2017)
method, place, and date of service of the citation.
Note:
(h) Corporations, Limited Liability Companies, and
Other Entities. A citation issued to a corporation or limited http://www.courts.alaska.gov/adbulls/ab83.pdf
liability company must name the corporation or company as
Note to SCO 1827: Minor Offense Rule 3(f) was amended by
the defendant. The officer must serve the citation on the on-site
§ 3 of ch. 53 SLA 2014 (CSSB 116), effective June 24, 2014,
manager, a managing member, an officer, a managing or
general agent, or on any other agent authorized by appointment
AS 12.25.175
or by law to receive service of process. If service cannot be
of this Order was adopted for the sole reason that the
made on one of the above in Alaska, service may be made as
legislature has mandated the amendments.
provided in AS 10.06.175(b) or 10.50.065(b). A citation issued
to a sole proprietorship must name the owner of the business as
Minor Offense Rule 3(g) Personal Service was repealed by § 4
the defendant and must be served on that person. A citation
of ch. 53 SLA 2014 (CSSB 116), effective June 24, 2014.
issued to a partnership, unincorporated association or other
Section 3 of this Order was adopted for the sole reason that the
entity must name the entity as the defendant and must be
legislature has mandated the repeal. Section 5 of this Order re-
served on a person designated for that entity in Civil Rule 4.
adopted a new subsection (g) Methods of Service of Citation.
The citation must name the person served.
Rule 4. Minor Offenses Not Charged on a Citation.
(i) Authority of Clerk.
(a) This rule applies to minor offenses charged on an
The clerk shall return any citation for correction if the
information or complaint without any related criminal charges.
citation is deficient because
(b) The charging document must include the information
(1) the offense listed on the citation is not in the court
required by Rule 3(b) and the administrative bulletin issued
uniform table of minor offenses;
(2) the citation does not list the classification of the
not appear on an information or complaint. Each defendant
offense required by Administrative Bulletin 83;
joined in an information or complaint must be assigned a
separate case number. The prosecuting authority must provide
(3) the citation does not list the penalty information or
the court with an additional copy of the charging document for
the procedure for responding required by Administrative
Except as provided in (c) below, an
Bulletin 83;
information or complaint must name an individual or
individuals as the defendant.
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ALASKA RULES OF MINOR OFFENSE PROCEDURE Rule 5
(c) An information or complaint charging a corporation, on the citation; or
limited liability company, or other entity must name the
(4) provide proof of compliance to a law enforcement
defendant as provided in Rule 3(h). The summons must be
agency if a statute, regulation, or ordinance permits dismissal
served on a person listed in Rule 3(h).
of the citation upon a showing of compliance, except that proof
(d) A summons shall be issued by a judge or magistrate of compliance also may be made to the court for violation of
judge only if probable cause has been established as provided AS 28.15.131 (failure to carry or exhibit license) or AS
in Criminal Rule 4(a)(1). No warrant may issue. The summons 28.22.019 (proof of insurance) or similar municipal ordinance
must be on a form approved by the administrative director. The that authorizes proof of compliance to be made to the court.
prosecuting authority shall furnish the court with a copy of the
(b) If a citation is filed with the court, the clerk is
summons and charging document to be served on the
authorized to dismiss the citation upon notification from the
defendant.
agency that proof of compliance was made or when proof of
(e) If probable cause is not established, the case is compliance is submitted to the court for violation of AS
deemed dismissed. 28.15.131, AS 28.22.019, or similar ordinance. A person may
display proof of insurance to the clerk on a mobile electronic
(f) The summons and charging document shall be served
device. The clerk may also grant a request for an extension of
together. They may be served upon the defendant by any peace
time to correct the defect.
officer or by any other person authorized to serve a summons
in a civil action, within this state or the United States or any of (c) A defendant who responds but
its possessions, by delivering a copy to the defendant
(1) fails to sign the citation,
personally, or by leaving it at the defendant's dwelling house or
usual place of abode with some person of suitable age and
(2) fails to submit a plea, or
discretion then residing therein or by certified mail as provided
in Civil Rule 4(h). Proof of service must be filed with the
(3) fails to provide full payment of the amount due
court. If requesting service by certified mail, the prosecuting
authority shall give the court an addressed envelope, adequate
will be deemed to have entered a plea of no contest, unless the
postage, and appropriate completed postal forms and must
defendant clearly indicates otherwise. If any amount remains
address the delivery receipt so it is returned to the court.
due to be paid, a judgment for the amount due will be entered
against the defendant under Rule 10.
(g) If the offense charged is on a bail forfeiture schedule
or fine schedule, the defendant must, within 30 days after
(Rescinded and readopted by SCO 1794 effective April 15,
being served with the summons, respond to the summons using
2013; renamed and renumbered by SCO 1797 effective
one of the options provided in Rule 5.
April 15, 2013; amended by SCO 1799 effective October 15,
2013; and by SCO 1895 effective November 1, 2016)
(h) A violation of AS 04.16.049, AS 04.16.050, or a
similar municipal ordinance may not be joined with other
Rule 5.1. Request for Judgment by Municipality.
minor offenses.
If the citation is initially filed with a municipality as provided
(Rescinded and readopted by SCO 1794 effective April 15,
in Administrative Bulletin 39 and the defendant either submits
2013; renamed and renumbered by SCO 1797 effective April
a plea of no contest without full payment or makes a partial
15, 2013; amended by SCO 1829 effective October 15, 2014);
payment without a not guilty plea, the municipality may
by SCO 1887 effective October 4, 2016; and by SCO 1895
request a judgment by filing a request for judgment on a form
effective November 1, 2016)
designated by the administrative director. Requests for
judgment must be filed within six months after the citation was
Rule 5. Optional Court Appearance.
issued.
(a) A defendant charged with a minor offense for which
Rule 6. Mandatory Court Appearance.
a bail forfeiture amount has been established by supreme court
order or for which a scheduled fine amount has been
(a) A defendant charged with a minor offense for which
established by statute or ordinance must within 30 days after
no bail forfeiture amount has been established by supreme
the citation was issued:
court order and for which no scheduled fine amount has been
established by statute or ordinance must:
(1) request to appear in court for an arraignment, which
must be conducted in accordance with Criminal Rule 5(c), to
(1) appear at the time and place indicated on the citation
the extent applicable to minor offenses; or
or summons for arraignment, which must be conducted in
accordance with Criminal Rule 5(c), to the extent applicable to
(2) enter a plea of not guilty and request trial by mailing
minor offenses;
or delivering a signed plea as directed on the citation; or
(2) submit a plea of not guilty without appearing for
(3) enter a plea of no contest and submit payment of the
arraignment; or
citation, plus any surcharge established by statute, as directed
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(3) provide proof of compliance to a law enforcement (i) the clerk shall give written notice of the request
agency if a statute, regulation, or ordinance permits dismissal to the defendant; and
of the citation upon a showing of compliance.
(ii) the defendant may file an opposition within 10
(b) The clerk is authorized to dismiss the citation upon days of the date the clerk distributes the notice.
notification from the agency that proof of compliance was
(B) If the request is filed within 15 days before the
made.
scheduled trial date, the clerk shall attempt to notify the
(Rescinded and readopted by SCO 1794 effective April 15, defendant by telephone, email, or fax. The clerk shall note the
2013; renamed and renumbered by SCO 1797 effective April
15, 2013; amended by SCO 1799 effective October 15, 2013;
(3) Request by Defendant. When a defendant requests to
and by SCO 1895 effective November 1, 2016)
reschedule a trial, notice to the prosecution is not required. No
opposition may be filed unless requested by the court.
Rule 7. Pleas.
(4) The clerk is authorized to
(a) When a no contest or guilty plea is entered, a
reschedule the trial except the court will decide the request
judgment of conviction will be entered.
when
(b) When a plea of not guilty is entered, the defendant is
(A) the requesting party has previously requested to
not required to post bail pending trial. When trial is requested,
reschedule the trial two times,
the case will be set on the calendar and notice sent to the
parties.
(B) trial cannot be rescheduled within the time set for
speedy trial under Rule 15,
(Rescinded and readopted by SCO 1794 effective April 15,
2013; renamed and renumbered by SCO 1797 effective
(C) an opposition is filed or noted, or
April 15, 2013)
(D) the clerk is unable to get a response from the
Rule 7.1 Motions; Requests to Reschedule Hearing
defendant as provided in (2)(B).
or Trial.
(Adopted by SCO 1895 effective November 1, 2016)
(a) Motions. Motions are governed by Criminal Rule 42
except that
Rule 8. Defendants Under 18.
(1) the moving party may not file a reply unless allowed
A defendant under age 18 at the time of the offense must
by the court; and
be accompanied by a parent, guardian, or legal custodian at
any court appearance for a minor offense until the defendant
(2) if a party seeks expedited consideration, the motion
reaches age 18.
must be titled expedited and the reasons for expedited
consideration must be set out in the motion. A separate motion
(Rescinded and readopted by SCO 1794 effective April 15,
for expedited consideration shall not be filed.
2013; renamed and renumbered by SCO 1797 effective April
15, 2013; and amended by SCO 1895 effective November 1,
(b) Requests to Reschedule Arraignment. The clerk is
2016)
authorized to reschedule an arraignment upon request by a
defendant.
Rule 9. Failure to Respond or to Appear.
(c) Request to Reschedule Trial.
(a) Failure to Respond to Citation.
(1) Form of Request. A request to reschedule trial must
(1) Default Judgment. If a defendant fails to respond as
be submitted on a form authorized by the administrative
provided in Rules 5 or 6, the court may, without finding
director. The requesting party must include an explanation for
probable cause to believe the defendant committed the offense,
the request, a list of available dates, and for defendants, a
enter a default judgment of conviction as provided in Rule 10.
waiver of the right to a speedy trial for the period of delay
caused by the request. A motion for expedited consideration
(2) Warning Notice Requirement. At least 15 days before
shall not be filed.
default judgment is entered, a notice advising the defendant of
the consequences of a failure to respond must be sent to the
(2) Request by Prosecution. When the prosecutor,
defendant at the address on record with the Division of Motor
officer who issued the citation, or other representative under
Vehicles or the address shown on the citation.
Rule 12(a) requests to reschedule a trial, the defendant will be
notified and provided the opportunity to respond as provided
(3) Citations Filed With Municipalities. If the citation is
below.
initially filed with a municipality as provided in Administrative
Bulletin 39, the municipality may request a default judgment
(A) If the request is filed more than fifteen days before
by filing with the court the citation and an affidavit from a
the scheduled trial date,
6
Page 39 of 89
Discussion Regarding Code Enforcement Process
AGENDA ITEM #2.a.
ALASKA RULES OF MINOR OFFENSE PROCEDURE Rule 10
municipal employee stating that the municipality sent the (c) Forfeiture.
defendant the warning notice required in (2) above and the
(1) A default judgment or a judgment entered on a no
defendant failed to respond. If the municipality has entered
contest plea must order forfeiture of any seized items listed on
into an agreement to file citations electronically under Rule 22,
the citation or other charging document.
the agreement must include procedures for verifying that the
defendant was sent the warning notice and failed to respond.
(2) All other judgments of conviction must order
Requests for default judgment must be filed within six months
forfeiture of:
after the citation was issued. The request and affidavit for
default judgment must be on a form approved by the
(A) all fish and game seized under AS 16.05.190 and
administrative director.
listed on the citation or other charging document,
(b) Failure to Appear After Summons. If a defendant
(B) all fish, or its fair market value, taken or retained as a
who has been served a summons issued under Rule 4 fails to
result of a strict liability commercial fishing violation as
appear or respond, the court may enter a default judgment of
provided in AS 16.05.722(b),
conviction as provided in Rule 10.
(C) any seized items listed on the citation or other
(c) Failure to Appear for Arraignment or Trial. If the
charging document if a statute or ordinance requires the item to
court sends a defendant notice of an arraignment or trial date
be forfeited upon conviction, and
and the defendant fails to appear on the scheduled date, the
court may, without finding probable cause to believe the
(D) any other items ordered by the court to be forfeited
defendant committed the offense, enter a default judgment of
when forfeiture is authorized by statute or ordinance.
conviction as provided in Rule 10. The notice of the
arraignment or trial date must advise the defendant of the
(3) Forfeited items shall be disposed of at the discretion
consequences if the defendant fails to appear.
of the prosecuting authority, unless otherwise ordered by the
court.
(d) Bench Warrants Prohibited. The court shall not
issue a bench warrant for failure to respond or appear or for
(d) Restitution. If the offense is a mandatory appearance
failure to satisfy the judgment in a minor offense case. This
offense, the court may order restitution as provided in AS
provision does not apply to minor offenses filed in criminal
16.05.925(b) or any other statute or ordinance authorizing
and underage consuming cases as provided in Rule 17 and
restitution. If the offense is a mandatory appearance offense,
Rule 18.
any default judgment entered must order payment of any
applicable restitution listed in AS 16.05.925(b). As provided in
(Rescinded and readopted by SCO 1794 effective April 15,
AS 16.05.165(d), restitution under AS 16.05.925(b) may not
2013; renamed and renumbered by SCO 1797 effective April
be ordered for offenses for which bail has been forfeited under
15, 2013; and amended by SCO 1895 effective November 1,
AS 16.05.165(c).
2016)
(e) Court Costs for Default Judgments. A default
Rule 10. Judgment, Costs, Fees, and Relief from
judgment entered under Rule 9 must require the defendant to
Default Judgment.
pay court costs in the amount of $35 per case. Court costs
imposed under this rule must be deposited in the state general
(a) Fine. A judgment of conviction must order payment
fund.
of the fine as follows:
(1) After Plea or Trial.
(f) Collection CostsAll Judgments.
(A) Pursuant to AS 12.25.230(c), the fine may not exceed
(1) The defendant will be assessed $35 per case in
the amount listed on the bail forfeiture or fine schedule. A
collection costs if the judgment is transferred for collection
scheduled fine amount may not be reduced if a municipal
ordinance prohibits reduction of the fine amount.
provided in Administrative Bulletin 43. The court may waive
this collec¬tion cost upon a showing of good cause. Collection
(B) For offenses that require a mandatory court
costs imposed under this paragraph belong to the political
appearance, the court may impose a fine up to the maximum
entity that prosecuted the offense. (2) For execution procedures
authorized by statute or ordinance.
not covered under (1), the defendant will be assessed collection
costs in the amount authorized by Civil Rule 69 and
(2) Default Judgment. A default judgment entered under
Administrative Rule 11.
Rule 9 must require the defendant to pay the scheduled bail or
fine amount if the offense is an optional court appearance
(g) Relief from Default Judgment.
offense or the maximum penalty if the offense is a mandatory
court appearance offense.
(1) Upon a motion filed within two years after entry of a
default judgment under Rule 9(a), (b), or (c), the court may
(b) Surcharge. All judgments must order payment of
vacate the judgment if the defendant shows that either
any applicable surcharge.
7
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Discussion Regarding Code Enforcement Process
AGENDA ITEM #2.a.
Rule 11 ALASKA COURT RULES
(A) there is a good reason for the failure to respond or
Rule ΐΐ. Dismissal and Deferred Prosecution.
appear and the defendant has a meritorious defense to the
offense charged, or
(a) By the Prosecuting Attorney or Representative.
The prosecuting attorney
(B) the proceedings were not fair to the defendant
under Rule 12(a) may dismiss a minor offense charge.
because the defendant did not receive notice of the charge or
the procedure for responding to the charge or that a default
(b) By Court. The court may dismiss a minor offense
judgment would be entered if defendant did not respond to the
charge if
charge.
(1) there is unnecessary delay in bringing a defendant to
(2) If the judgment is vacated, the case must be set for
trial pursuant to Rule 15;
trial unless the prosecution dismisses the case or, if the offense
(2) the prosecuting attorney or the pros
is correctable, the defendant shows proof of compliance with
representative under Rule 12(a) fails to appear for trial;
the law.
(3) proof of compliance is made to an agency or to the
(h) Authority of Clerk.
court as provided in Rule 5(a)(4) or Rule 6(a)(3); or
(1) The clerk is authorized to enter judgments of
(4) dismissal is in furtherance of justice. The reasons for
conviction when a defendant mails or delivers to the clerk a
the dismissal shall be set forth in the order or on the record.
plea of no contest, payment of the fine without a plea, fails to
The court may not dismiss a minor offense charge conditioned
respond to a citation or summons, or fails to appear for trial.
upon the defendant paying a fine, completing a defensive
(2) The clerk is authorized to enter a judgment of
driving course, completing community work service, or other
conviction when a municipality files a request and affidavit for
conditions.
entry of judgment under Rule 5.1.
(c) Identity Error in Charging Document. If the
(3) After entry of a judgment of conviction, the clerk
prosecution initiates or concurs with the dismissal of charges
may, upon request of the defendant, approve deferral of
against a defendant because the named defendant was not the
payment of the fine and surcharge for up to six months from
person whom the prosecution intended to charge with the
the date of the request. This request does not need to be served
offense, the court shall enter a written order of dismissal
on the prosecution.
clearly stating that this is the reason for the dismissal.
(4) The clerk is authorized to reduce a fine upon
(d) Deferred Prosecution. When a charge has been filed
presentation of required proof under AS 04.16.049(i) or
with the court and the prosecutor
AS 04.16050(c).
representative under Rule 12(a) enters into an agreement with
(i) Disposition of Records of Conviction. The court
agreement to complete a defensive driving course or on other
system must transmit notice of conviction to the following
conditions, the prosecutor or representative must file the
agencies:
agreement with the court
record. The agreement must include the date by which the
(1) In the case of a motor vehicle offense, the conviction
defendant must complete the defensive driving course or other
will be transmitted to the Department of Administration,
conditions and the date by which the prosecutor will file a
Division of Motor Vehicles.
dismissal. If the agreement is conditioned upon payment of a
fee or costs, payment may not be made to the court. Upon
(2) In the case of a fish and game violation, the
satisfactory completion of the agreement, the prosecutor or
conviction will be transmitted to the Department of Public
representative must file a notice of dismissal with the court. If
Safety.
a notice of dismissal is not filed by the date stated in the
agreement, the court may enter a judgment of conviction.
(3) In the case of a commercial fishing violation, the
conviction and sentence will be transmitted to the Commercial
(Rescinded and readopted by SCO 1794 effective April 15,
Fisheries Entry Commission as required by AS 16.43.880 and
2013; renamed and renumbered by SCO 1797 effective April
AS 16.43.970.
15, 2013; and amended by SCO 1895 effective November 1,
2016)
(Rescinded and readopted by SCO 1794 effective April 15,
2013; renamed and renumbered by SCO 1797 effective April
Note: Rule 11(d) clarifies that defensive driving course
15, 2013; amended by SCO 1827 effective June 24, 2014;
dismissals are within the jurisdiction of the prosecuting
amended by SCO 1895 effective November 1, 2016; and by
authority as a form of deferred prosecution.
SCO 1938 effective January 1, 2019)
Rule 12. Non-Attorney Representation.
(a) Representation of State or Municipality by Non-
Attorney.
8
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Discussion Regarding Code Enforcement Process
AGENDA ITEM #2.a.
ALASKA RULES OF MINOR OFFENSE PROCEDURE Rule 13
(1) For the prosecution of minor offense charges under (h) After the plea has been entered, the second court
these rules, a municipal corporation or the State of Alaska may shall, within 10 working days, return all papers to the original
be represented by the officer who issued the citation or court.
complaint or by another employee of the investigating agency.
(Rescinded and readopted by SCO 1794 effective April 15,
The representative need not be employed by the same
2013; renamed and renumbered by SCO 1797 effective
government entity represented, but must be authorized by the
April 15, 2013; and amended by SCO 1895 effective
entity to represent it.
November 1, 2016)
(2) The representative may file a request to reschedule
trial or a request to participate telephonically, and may give
Rule 14. Change of Venue.
testimony, offer exhibits, or call witnesses for examination by
A request to change the place of trial in a minor offense
the court. The representative may also defer prosecution and
case may be made for the reasons stated in AS 22.15.080. It
dismiss charges. The representative may not examine
must be made by motion and must be supported by affidavit.
witnesses, make opening statements and closing arguments, or
The opposing party has five days from the date of service to
otherwise act as an attorney.
file a response. If the court grants the motion, the clerk in the
(b) Corporations. A corporation or other public or
court where the case is filed must transmit the file to the new
private organization may be represented in any stage of a
court.
minor offense proceeding, including an appeal, by any officer
(Rescinded and readopted by SCO 1794 effective April 15,
or employee authorized in writing to represent it.
2013; renamed and renumbered by SCO 1797 effective
(Rescinded and readopted by SCO 1794 effective April 15,
April 15, 2013)
2013; renamed and renumbered by SCO 1797 effective April
15, 2013; and amended by SCO 1895 effective November 1,
Rule 15. Speedy TrialWhen Time Commences to
2016)
Run.
Rule 13. Temporary Transfer of Minor Offense The right to speedy trial on minor offenses is governed by
Criminal Rule 45. A defendant charged with a minor offense
Cases.
must be tried within 120 days from the date the defendant's
(a) For purposes of this
request for trial is received by the court or the municipality,
means the court in which a minor offense case is pending. The
whichever occurs first. If the defendant is to be tried after a
term second cou means the court to which the defendant
judgment is vacated, a mistrial, an order for a new trial, or an
requests that the case be temporarily transferred.
appeal, the time for trial shall run from the date the judgment
was vacated, the date of mistrial or order granting a new trial,
(b) The defendant may request that arraignment be held
or the remand date.
in a second court, which is nearest to the place where the
defendant resides or is employed, instead of in the original
(Rescinded and readopted by SCO 1794 effective April 15,
court.
2013; renamed and renumbered by SCO 1797 effective
April 15, 2013)
(c) The request for temporary transfer for
arraignment may be made in writing or in person to the clerk
Rule 16. Peremptory Challenges.
of court in the original court or to the clerk of court in the
second court.
A judge in a minor offense case may not be peremptorily
challenged under either Criminal Rule 25(d) or AS 22.20.022.
(d) If the requirements of subsection (b) are satisfied, the
clerk shall grant the request for temporary transfer. Approval
(Rescinded and readopted by SCO 1794 effective April 15,
of the prosecuting authority at the original court is not
2013; renamed and renumbered by SCO 1797 effective
required.
April 15, 2013)
(e) The clerk who grants the request shall immediately
Rule 17. Minor Offenses in Criminal Cases.
notify the other court of the temporary transfer. Following
notification, the clerk in the original court shall provide a copy
(a) Joinder. Except as provide in subsection (h), a
of the citation to the second court.
prosecutor may join a minor offense charge with a related
criminal charge under the circumstances described in Criminal
(f) The defendant may be arraigned in the second court
Rule 8(a).
on a copy or facsimile of the citation.
(b) Minor Offense Citation. A minor offense citation
(g) If the defendant enters a plea of guilty or no contest
may not be filed in a criminal case.
in the second court, the defendant shall be sentenced in the
second court. If the defendant enters a plea of not guilty, the
(c) Separate Count. The minor offense charge joined
second court shall return the case to the original court for trial
with a criminal charge must be charged in a separate count in
setting.
the criminal complaint, information or indictment. The minor
9
Page 42 of 89
Discussion Regarding Code Enforcement Process
AGENDA ITEM #2.a.
Rule 18 ALASKA COURT RULES
offense count must include the arrest tracking number (ATN)
and charge tracking number (CTN) as required by Criminal
Rule 3(c) or 7(c). It must also include the statute, regulation or
Rule 18. Minor Offenses that Must be Filed as
ordinance as identified in the uniform table of minor offenses
Underage Consuming Cases.
required in Rule 3(b).
Unless filed with a related criminal case, the offenses
(d) Notice of Joinder. If a citation issued for a minor
listed as exceptions to the minor offense case numbering
offense has been filed with the court and the prosecutor wishes
policy in Administrative Bulletin 7 must be filed as underage
to join that charge with a criminal charge, the prosecutor must
consuming cases and must be assigned underage consuming
Charge with Criminal
case numbers. Criminal rules rather than minor offense rules
Charge
apply to these offenses, even though these offenses are not
minor offense case. The prosecutor must list the minor offense
classified by statute as criminal offenses. Criminal charges
charge as a count in the criminal charging document as
may not be filed in an underage consuming case.
provided in subsection (c).
(Rescinded and readopted by SCO 1794 effective April 15,
(e) Criminal Rules Apply. Except as provided in (f)
2013; renamed and renumbered by SCO 1797 effective April
and (g), criminal rules rather than minor offense rules apply
15, 2013; amended by SCO 1845 effective January 1, 2015;
when
and by SCO 1895 effective November 1, 2016)
(1) a minor offense charge is joined with a related
Note: Under Administrative Bulletin 7, available on the court
criminal charge, and
system website at
http://www.courts.alaska.gov/adbulls/ab83.pdf, the following
(2) a criminal charge is amended to be a minor offense
offenses must be filed as an underage consuming case:
charge.
AS 28.35.280 Minor Operating Vehicle after Consuming;
(f) When Minor Offense Rules Apply. If all criminal
charges have been disposed of in a criminal case and the only
AS 28.35.285 Minor Refusing to Submit to Chemical
remaining charge or charges are minor offenses, the minor
Test;
offense rules apply to all further proceedings. If the defendant
AS 28.35.290 Minor Operating Vehicle Within 24 Hours
has failed to appear, the court may direct the clerk to issue a
of Being Cited for Offenses Under AS 28.35.280 or 285; and
warning notice advising the defendant that the defendant must
contact the court within 15 days to reschedule the hearing or
Any municipal offense similar to the above involving
the court will enter a default judgment of conviction for the
alcohol or marijuana that is not classified as a misdemeanor
minor offense as provided in Rule 10. This subsection does
and with potential penalties that do not include incarceration
not apply to underage consuming offenses as defined in
but otherwise entitle the defendant to jury trial and to counsel
Administrative Bulletin 7.
at public expense.
(g) Maximum Fine for Minor Offense. Pursuant to AS
12.25.230(c), the fine for an offense listed on a bail forfeiture Rule 19. Telephonic Participation in Minor Offense
schedule or a municipal fine schedule is the maximum fine that
Cases.
may be imposed for that offense. A scheduled fine amount
In any proceeding the defendant may waive the right to be
may not be reduced if a municipal ordinance prohibits
present and request to participate by telephone. The
reduction of the fine amount.
defendant's waiver of the right to be physically present may be
(h) Joinder Limits. A prosecutor may not join a
obtained orally on the record or in writing. The court may
violation of AS 04.16.049 or 04.16.050 or a similar municipal
allow telephonic participation of one or more parties,
ordinance with a related criminal charge.
witnesses, counsel or the judge at trial or any other proceeding
unless good cause or due process requires otherwise. The
(Rescinded and readopted by SCO 1794 effective April 15,
responsibility for the cost of a telephonic hearing is governed
2013; renamed and renumbered by SCO 1797 effective April
by Administrative Rule 48(b).
15, 2013; amended by SCO 1886 effective October 4, 2016; by
SCO 1887 effective October 4, 2016; and by SCO 1895
(Rescinded and readopted by SCO 1794 effective April 15,
effective November 1, 2016)
2013; renamed and renumbered by SCO 1797 effective
April 15, 2013)
Note to SCO 1886: Chapter 32, SLA 2016 (SB 165), at
sections 8 and 9, make the following offenses violations: AS
Rule 20. Form of Judgment.
04.16.049 (unauthorized presence on a licensed premises) and
AS 04.16.050 (minors consuming alcohol). Sections 20 and 21
(a) Electronic Record Is Official Judgment. The
of the Act amended subsection (a) of Minor Offense Rule 17
official judgment in a minor offense case is the electronic
and added a new subsection (g), effective October 4, 2016, to
record in the case management system. The clerk will provide
require that these violations not be joined with any related
a printout of the electronic judgment upon request.
criminal offense. This rule change is adopted for the sole
reason that the legislature has mandated the amendment.
(b) Content. An electronic judgment must contain the
10
Page 43 of 89
Discussion Regarding Code Enforcement Process
AGENDA ITEM #2.a.
ALASKA RULES OF MINOR OFFENSE PROCEDURE Rule 21
following information: decision to writing. A copy of the written order or judgment
will be distributed to the parties. Any appeal must be filed
(1) the case number,
within 30 days from the date of distribution of the order or
judgment.
(2) the date of the offense,
(b) Writ of Execution. Writs of execution may be issued
(3) the defendant's full name,
to enforce minor offense judgments, including electronic
judgments, as provided in Civil Rule 69.
(4) the following information if it appears on the citation:
(Added by SCO 1453 effective April 15, 2002; renamed and
(A) the defendant's date of birth,
renumbered by SCO 1797 effective April 15, 2013)
(B) the defendant's address, and
Rule 22. Electronic Citations in Minor Offense
(C) the defendant's driver's license or ID number.
Cases.
(5) the name of the offense and number of the statute,
(a) Authorization for Filing Citations Electronically.
regulation or ordinance of which the defendant is charged or
The administrative director may enter into an agreement with a
convicted,
law enforcement agency to allow the law enforcement agency
to file citations charging minor offenses, as defined in Rule 2,
(6) the DMV code of the offense if it appears on the
by transmitting data electronically rather than by filing paper
citation,
citations. The administrative director may enter into an
(7) the defendant's plea, and
procedures assure that:
(8) the final disposition (including sentence).
(1) the charging officer will issue a paper citation to the
defendant in accordance with AS 12.25.190;
(Added by SCO 1453 effective April 15, 2002; renamed and
renumbered by SCO 1797 effective April 15, 2013)
(2) a paper citation issued from an electronic device will
contain the charging officers electronic or digital signature as
Rule 21. Commencement of Time for Appeal; Writ
defined in AS 09.80.190;
of Execution.
(3) the court will have the ability to view an electronic
(a) Commencement of Time for Appeal.
version of the paper citation that the charging officer issued to
the defendant, including the charging officers electronic,
(1) Judgment Based on No Contest Plea. When a
digital, or handwritten signature;
defendant mails or delivers a no contest plea, a copy of the
judgment will not be distributed to the parties, except upon
(4) the agency has a written acknowledgement from each
request. To appeal a judgment based on a no contest plea, other
peace officer authorized to issue electronic citations certifying
than an appeal of the penalty, the defendant must first move to
that the officer understands that affixing an electronic or digital
withdraw the plea under Criminal Rule 11. Appeal may be
signature to a citation is the legally binding equivalent of
taken from an order denying (or granting) the motion. The
signing a citation by hand, and that by affixing an electronic or
appeal must be filed within 30 days after the date shown in the
digital signature, the officer intends to be bound by the
clerk's certificate of distribution on the order.
signature;
(2) Default Judgment. When a judgment of conviction is
(5) the agency employs policies that hold individual
entered under Rule 9, a copy of the judgment will not be
officers accountable and responsible for actions initiated under
distributed to the parties, except upon request. To appeal a
their electronic or digital signatures; and
default judgment, the defendant must first move to vacate or
modify the judgment under Rule 10(g). Appeal may be taken
(6) the agency employs adequate security procedures to
from an order denying (or granting) the motion. The appeal
verify that an electronic signature, record, or performance is
must be filed within 30 days after the date shown in the clerk's
that of a specific person and to detect changes or errors in the
certificate of distribution on the order.
electronic records related to the citation.
(3) Judgment Entered in Open Court. When judgment of
(b) Electronic Signature. -
conviction is entered in open court, parties who are present
tronic or digital signature on a citation is the legally binding
will be given written notice of the terms of the judgment. Any
appeal must be filed within 30 days from the date the judgment
the requirement of Criminal Rule 3(a) that a citation for a
is announced in court. This also applies to an order of
minor offense must be signed with a certification under penalty
dismissal entered in open court.
of perjury that the citation is true.
(4) Matters Taken Under Advisement. When a court
(Added by SCO 1587 effective December 15, 2005; renamed
takes a matter under advisement, the court will reduce its
and renumbered by SCO 1797 effective April 15, 2013)
11
Page 44 of 89
Discussion Regarding Code Enforcement Process
AGENDA ITEM #2.a.
Rule 23 ALASKA COURT RULES
Rule 23. Exhibits
The procedure for exhibits in minor offense trials is governed
by Criminal Rule 26.1.
(Added by SCO 1895 effective November 1, 2016)
12
Page 45 of 89
Discussion Regarding Code Enforcement Process
AGENDA ITEM #2.a.
ALASKA RULES OF MINOR OFFENSE PROCEDURE Rule 23
13
Page 46 of 89
Discussion Regarding Code Enforcement Process
Discussion Regarding Code Enforcement Process
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Page 47 of 89
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Page 48 of 89
G!@$*<"D*! <!42"ZN#RN&L#X""K2L#2LKC,
AGENDA ITEM #2.a.
1 Introduced by: Borough Manager
2 Drafted by: Borough Manager
3 Introduced on:
4 Adopted on:
5
6 KODIAK ISLAND BOROUGH
7 RESOLUTION NO. FY2020-XX
8
9 A RESOLUTION OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH ESTABLISHING
10 ENFORCEMENT PROCEDURES FOR VARIOUS VIOLATIONS OF THE KODIAK ISLAND
11 BOROUGH CODE OF ORDINANCES
12
13 WHEREAS, the Boroughs Zoning Enforcement Procedure document has not been reviewed
14 and updated since itsadoption via Resolution No. 91-20; and
15
16 WHEREAS, the Borough Assembly believes it is in the Boroughs best interest to complete a
17 review of the Boroughs Zoning Enforcement Procedure contemporaneously with the
18 implementation of the State of Alaskas Uniform Minor Offense Table (UMOT) process; and
19
20 WHEREAS, Chapter 29.25.070(a) of the Alaska Statutes allows for certain offenses to be
21 disposed of without a court appearance, provided that these minor offenses are processed using
22 uniform citations and procedures (AS 12.25.175); and
23
24 WHEREAS, the Kodiak Island Borough Assembly adopted Ordinance No. FY2015-06 in 2014
25 which amended Borough Code to allow for implementation of the UMOT process; and
26
27 WHEREAS, the Kodiak Island Borough has not yet adopted procedures for enforcement of
28 UMOT-related violations; and
29
30 NOW, THEREFORE, BE IT RESOLVED BY THE ASSEMBLY OF THE KODIAK ISLAND
31 BOROUGH that the enforcement procedures for zoning and UMOT violations of the Kodiak Island
32 Borough Code of Ordinances are:
33
34 ZONING ENFORCEMENT PROCEDURES
35
36 1. ACCEPT THE COMPLAINT
37 A. Determine if the complaint involves a land use violation. (If not, refer the
38 complainant to the Building Official, Department of Environmental Conservation,
39 Corps of Engineers, or other appropriate agency.)
40
41 B. Review the Borough Code. If there appears to be a land use violation, assist the
42 complainant in filling out a violation complaint form. Signed complaint forms receive
43 priority.)
44
45 C. If the complainant declines to fill out a violation complaint form, staff should fill out
46 the form as completely as possible from the information provided by the complainant.
47 Signed complaints and alleged violations brought up at public meetings or resulting
Kodiak Island Borough, Alaska Resolution No. FY2020-XX
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AGENDA ITEM #2.a.
48 from Planning and Zoning Commission cases receive priority. Unsigned complaints
49 or complaints received anonymously by telephone are pursued on a time available
50 basis.
51
52 D. Each violation complaint should be noted in the violation database and the current
53 status of the violation kept up to date. Complaints that are determined to be invalid
54 or are referred to another agency should also be entered into the database with the
55 appropriate determination.
56
57 2. INVESTIGATE THE COMPLAINT
58 A. Check the department property files to see if there have been previous complaints or
59 building activity on the property that are relevant to the current complaint.
60
61 B. Check Assessing Department and Building Department files to see if they contain
62 information, permits, photos, or other data relevant to the complaint.
63
64 C. Make an on-site inspection to become familiar with the conditions on the property,
65 documenting with photos the alleged violations and making personal contact, if
66 possible, with the property owner and/or violator to explain the complaint and
67 violation.
68
69 D. If the violation is determined to be valid, reopen the violation file for the property in
70 question if one exists, or set up a violation (red-
71 If the complaint is not valid and no zoning violation exists, or if it is ultimately referred
72 to another agency, place a memo to this effect in the general (green-label) property
73 file.
74
75 3. ENFORCEMENT ACTION
76 A. Contact the Property Owner: Personal contact (telephone/on-site) should be made
77 with the violator and/or property owner within seven (7) calendar days of receiving
78 the complaint, explaining the violation (specifying code section) and indicating how
79 and when it should be corrected. A letter will be sent to the property owner, and/or
80 any violator, within seven (7) calendar days of contact. The seriousness of the
81 violation and whether or not personal contact has been made will dictate whether this
82 letter is sent certified mail. Any violation, regardless of the degree of seriousness, in
83 which personal contact with the violator or property owner is not made after three (3)
84 documented attempts within seven calendar days will result in an administrative
85 decision sent by certified mail to the property owner.
86
87 1. If a violation is potentially hazardous and presents an immediate threat to health
88 and welfare, a stop-work order will be issued and hand-delivered on site to
89 whomever is engaged in the activity. A court injunction will be sought to ensure
90 that the activity is not continued until the health threat is resolved and the zoning
91 violation abated. A copy of the stop-work order will be mailed certified to the
92 property owner, if different from the person to whom the order was hand
93 delivered on site.
94
95 2. -
96 mobile illegal dwelling, non-permitted home occupations) and just beginning, as
97 opposed to established and getting worse, and personal contact has been made,
98 a non-certified warning letter will be sent setting a fifteen (15) calendar day
99 deadline for abatement. This letter will state that failure to meet the deadline will
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100 result in a final administrative decision and further enforcement action. A site
101 inspection will be conducted to verify compliance with the deadline.
102
103 3. If the violation is serious and established, personal contact will be followed with a
104 certified letter setting a compliance deadline by administrative decision.
105
106 B. Administrative decisions: Administrative decisions will generally establish a thirty (30)
107 calendar day compliance deadline. For more entrenched, longstanding violations
108 requiring major structural alteration, large-scale clean-up, or displacement of
109 occupants, a sixty (60) calendar dayor longerdeadline will generally be
110
111 the decision is final unless appealed to the Planning and Zoning Commission within
112 ten (10) days of receipt of the letter, list the penalties specified by Code for failure to
113 appeal or comply, and state that further enforcement will be in the form of legal
114 action. Copies of the letter will go to the file, complainant, violator and/or property
115 owner, Planning and Zoning Commission, Borough Attorney, appropriate lending
116 institution and other departments as relevant.
117
118 C. Appeals: An appeal of an administrative decision to the Planning and Zoning
119 Commission is valid only if filed in writing with the Community Development
120 Department within ten (10) days of receipt of the certified letter giving notice of the
121 administrative decision. When an enforcement case is appealed to the Planning and
122 Zoning Commission, a new P&Z case file is created. An appeal stays any
123 administrative decision until the Commission either affirms or reverses the decision
124 in whole or in part. If the administrative decision is affirmed and no relief is granted,
125 the original time period setting a compliance deadline is reestablished. Therefore, if
126 a 30-day deadline was originally established to abate the zoning violation, the 30-day
127
128 of the administrative decision, unless some other deadline is established by the
129 Commission. A site inspection will be scheduled to verify compliance with any
130
131 City Council or Borough Assembly, the same guideline will apply. Noncompliance by
132 a final deadline will result in an Authorization-To-Seek-Legal-Opinion being filled out
133 and submitted as outlined in 4C.
134
135 4. FOLLOW UP
136 A. Inspect the property to ensure that the violation has been abated. If the issue has
137
138 file and/or a letter of acknowledgement to the property owner and/or violator, and a
139
140 property files and the compliance date entered into the database.
141
142 B. If the violation has not been abated but obvious progress has been made and the
143 property owner and/or violator has personally expressed the intention of complying,
144 the deadline may be extended for a time period appropriate to the circumstances (i.e.
145 a fisherman in the Bering Sea). This extension, in most cases, will not exceed 20
146 calendar days, and should be confirmed by phone or personal contact with the
147 property owner and/or violator and followed up with a note in the file. The intention,
148 here, is to be consistent with the philosophy underlying the Zoning Enforcement
149 Policy of focusing on elimination of the violation, not punishment of the violator.
150
Kodiak Island Borough, Alaska Resolution No. FY2020-XX
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AGENDA ITEM #2.a.
151 C. If a site inspection on the deadline reveals that the violation continues with no
152 apparent effort made to correct it, and that the property owner and/or violator has
153 chosen to ignore the deadline and the directive to abate the violation, a standard
154 Authorization-To-Seek-Legal-Opinion form will be filled out and submitted for
155 signatures authorizing legal action.
156
157 D. If, after legal action has been initiated, the property owner and/or violator asks for
158 additional time in order to comply with the administrative decision, the property
159 owner and/or violator
160 offering an appropriate schedule to abate the violation is executed.
161
162 UNIFORM MINOR OFFENSE TABLE (UMOT) ENFORCEMENT PROCEDURES
163
164 1. Definitions
165
166 means an officer authorized by the Borough to engage in or
167 supervise the prevention, detection, or investigation of any violation of the Kodiak
168 Island Borough Code of Ordinances.
169
170 "Peace officer" means an officer authorized by the Borough and who is vested by law
171 to issue citations for all violations of the Kodiak Island Borough Code of Ordinances
172 that are specifically listed in the Uniform Minor Offense Table.
173
174 2. Department Receives Notice of Alleged Offense
175
176 A. Initiated by citizen complaint.
177
178 B. Observed by enforcement official or peace officer.
179
180 3. Staff Completes Initial Intake Procedures
181
182 A. Enforcement case number assigned.
183
184 B. Case number added to list of active cases.
185
186 C. Completion of internal forms.
187
188 D. Creation of new case file or appendment to existing file.
189
190 E. Assignment to case manager responsible for conducting investigations and
191 monitoring any subsequent enforcement process.
192
193 4. Completion of Investigation
194
195 A. Completed in order of priority.
196
197 I. High Priority: The violation, if true, would constitute an immediate or apparent
198 threat to health, safety, or the environment.
199
200 II. Medium Priority: The violation would not constitute an immediate threat to health
201 and safety, but has the potential to become one if left uncorrected.
202
Kodiak Island Borough, Alaska Resolution No. FY2020-XX
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AGENDA ITEM #2.a.
203 III. Low Priority: All other violations.
204
205 B. Manner of completing initial inspection.
206
207 I. Visual inspection from right of way.
208
209 II.
210 permission.
211
212 III. Collection of photographic evidence to support conclusions; photographs should
213 accurately reflect the size and scope of the violation, to the extent possible.
214
215 IV. Inspector should exercise politeness and tact in conducting the investigation and
216 should make no disclosures to individuals other than the property owner
217 conclusions.
218
219 C. Preservation of evidence.
220
221 I.
222 observations and any photographic evidence collected during its course, should
223 be clearly dated and preserved in the corresponding case file.
224
225 5. Optional Issuance of Courtesy Notice & Follow Up Investigation
226
227 A. Courtesy Notice.
228
229 I. Issued by individual who conducted the inspection.
230
231 II. Explains to the property owner:
232
233 a) What is required by the applicable provision of the KIBC;
234
235 b) The date of inspection, and findings, including photographic evidence;
236
237 c) A warning that, if not corrected within a specified period, a citation will follow;
238 and
239
240 d) An explanation of steps that must be taken to remedy the violation.
241
242 e) That there is NO RIGHT to appeal enforcement action taken pursuant to
243 KIBC 8.25.040 or KIBC 10.10.080.
244
245 B. Follow-Up Inspection.
246
247 I. Conducted for the purpose of confirming compliance.
248
249 II. Standards identical to that set forth at Sections 3(b).
250
251 III. All evidence, including
252 stamped and inserted into corresponding case file.
253
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AGENDA ITEM #2.a.
254 IV. Should the follow up inspection reveal that the violation continues to exist a
255 citation shall be issued per the procedures set forth in section 6.
256
257 6. Issuance of Citation
258
259 A. Review property file to confirm whether previous violations have occurred; assign
260 fine according to number of previous violations.
261
262 B. Completed by investigating official, based upon personal knowledge and/or third-
263 party witness reports or testimony.
264
265 C. Sent via certified mail or personally issued by a peace officer.
266
267 7. Court Enforcement Process
268
269 A. When appropriate, citation data is transmitted to Kodiak Court for prosecution.
270
271 I. Borough staff delivers executed citations to Kodiak Court.
272
273 II. Court assigns an active case number.
274
275 III. Borough staff records court case number
276 purposes.
277
278 B. Administrative monitoring of cases by Borough.
279
280 I. Borough reviews status for pending cases on scheduled basis.
281
282 II. Borough staff removes
283 by the Court upon payment of fine and issues a report to Finance Department for
284 purposes of auditing fines remitted to the Borough by the Court.
285
286 III. Cases for which the defendant has requested a court appearance are flagged for
287 active prosecution.
288
289 C. Enforcement official appears in court on behalf of the Borough and prosecutes cases
290 in which the defendant has requested a formal hearing.
291
292 I. Enforcement official prepares evidence to present at hearing showing that:
293
294 a) The defendant received notice of:
295
296 i. The alleged violation;
297
298 ii. The provisions of the KIBC alleged to have been violated;
299
300 iii. If applicable, a Courtesy Notice explaining how the violation might be
301 remedied, and the timeframe for doing so; and
302
303 iv. The amount of the applicable fine.
304
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AGENDA ITEM #2.a.
305 b) The defendant did, in fact, violate the applicable provisions of the KIBC by
306 presenting the following:
307
308 i. The date of the inspection;
309
310 ii.
311 during the inspection; and
312
313 iii. Photographic evidence showing that a violation occurred.
314
315 BE IT FURTHER RESOLVED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH that
316
317 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH
318 THIS __________ DAY OF _______________, 2019.
319
320 KODIAK ISLAND BOROUGH ATTEST:
321
322
323 ___________________________ ___________________________
324 Daniel A. Rohrer, Mayor Tara Welinsky, Clerk
325
326 VOTES:
327 Ayes:
328 Noes:
Kodiak Island Borough, Alaska Resolution No. FY2020-XX
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Discussion Regarding Code Enforcement Process
AGENDA ITEM #2.a.
1 Introduced by: Borough Manager
2 Drafted by: Borough Manager
3 Introduced on:
4 Public Hearing Date:
5 Adopted on:
6 KODIAK ISLAND BOROUGH
7 ORDINANCE NO. FY2020-XX
8
9 AN ORDINANCE OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH AMENDING
10 TITLES 1, 6, 8, 9, 10, 13, 15, 16, 17 AND 18 OF THE BOROUGH CODE TO MODIFY
11 ENFORCEMENT PROCESSES
12
13 WHEREAS, in 2014 the Borough Assembly chose to proceed with modifications to the Kodiak
14 Island Borough Code to accommodate inclusion of certain Borough Code violations in the Alaska
15 Uniform Minor Offense Table (UMOT), thus allowing enforcement with citations; and
16
17 WHEREAS, the Assembly finds that potential jail time and labelling certain code violations as
18 misdemeanors restricts the ability to enforce those offenses through a citation process; and
19
20 WHEREAS, the Assembly finds that it is appropriate to update references to enforcement
21 officers in the Borough Code to eliminate different terms referring to the same functions; and
22
23 WHEREAS, the Assembly finds that it is in the public interest to enable Borough staff to enforce
24 the Borough Code using the minor offense process through the Alaska Court system.
25
26 NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KODIAK ISLAND
27 BOROUGH THAT:
28
29 Section 1: Sections 2 through 17 of this ordinance are of a general and permanent nature
30 and shall become a part of the Kodiak Island Borough Code of Ordinances.
31
32 Section 2: Kodiak Island Borough Code Chapter 1.20, General Penalty, is amended to read
33 as follows:
34
35 Chapter 1.20
36 GENERAL PENALTY
37 Sections:
38 1.20.010 Designated.
39 1.20.020 Scope of prohibitions.
40 1.20.030 Code enforcement officer designation.
41 1.20.040 Application of fine schedule.
42 1.20.050 Fine schedule.
43
44 1.20.010 Designated.
Kodiak Island Borough, Alaska Ordinance No. FY2020-XX
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45 A. A violation of a provision of this code is an offense punishable by a penalty not to exceed a fine
46 of $1,000, in addition to the surcharge required under AS 12.55.039. If another penalty is
47 established by ordinance for the provision violated and that penalty is listed in the schedule of
48 fines adopted by the borough assembly, that penalty shall apply.
49
50 B. In accordance with AS 29.25.070(a), citations for the certain offenses of KIBC may be disposed
51 of as provided in AS 12.25.195 through 12.25.230, without a court appearance, upon payment of
52 the fine amounts established in a schedule of fines adopted by the borough assembly by
53 ordinance resolution, plus the state surcharge required by AS 12.55.039 and 29.25.074. For
54 purposes of elevated fines for subsequent offenses, a prior offense is within the time
55 period for consideration if the conviction for that offense occurred within 3 years prior to
56 the date of the present alleged violation. The Rules of Minor Offense Procedure in the Alaska
57 Rules of Court apply to all offenses listed in the established schedule of fines. Citations charging
58 these offenses must meet the requirements of Minor Offense Rule 3. If a person charged with
59 one of these offenses appears in court and is found guilty, the penalty imposed for the offense
60 may not exceed the fine amount for that offense listed. If an offense is not listed on this schedule
61 of fines, or if an offense is listed as requiring a mandatory court appearance, the defendant
62 must appear in court to answer to the charges. These fines prescribed in the fine schedule may
63 not be judicially reduced.
64
65 C. The borough or an aggrieved person may institute a civil action against a person, including a
66 minor as provided in this subsection, who violates any provision of this code. In addition to
67 injunctive and compensatory relief, the penalty listed in the schedule of fines adopted by the
68 borough assembly, and not to exceed $1,000, may be imposed for each violation. An action to
69 enjoin a violation may be brought notwithstanding the availability of any other remedy. On
70 application for injunctive relief and a finding of a violation or a threatened violation, the superior
71 court shall grant the injunction. Each day that a violation of an ordinance continues constitutes a
72 separate violation.
73
74 D. The borough shall provide written notice to the commissioner of health and social services or
75
76 violation of an ordinance under subsection C of this section against a minor. Unless the
77 commissioner and the borough have negotiated an agreement making other arrangements for
78 the borough to provide the notice required by this subsection, the borough shall provide the notice
79 by mailing a copy of the citation or other document setting out the notice of the commencement
80 of the civil enforcement action.
81
82 E.
83
84 F. Unless an ordinance authorizes use of a hearing officer, the enforcement of a civil penalty
85 against a minor for violation of any provision of this code shall be heard in the district court in the
86
87 guardian, or legal custodian shall be present at all proceedings unless the court excuses the
88 parent, guardian, or legal custodian from attendance for good cause.
89
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AGENDA ITEM #2.a.
90 G. An action for a civil penalty filed against a minor under this section does not give rise to the
91 right to a trial by jury or to counsel appointed at public expense.
92
93 1.20.020 Scope of prohibitions.
94 When an ordinance of the borough prohibits an act or an omission, it shall be construed to prohibit
95 causing, aiding, abetting, or concealing the fact of the act or omission.
96
97 1.20.030 Code enforcement officer designation.
98 The manager may designate in writing as borough code enforcement officers those
99 persons authorized to enforce any part of this code. Any officer so designated to enforce
100 some or all provisions of the KIB Code shall be authorized to issue citations, or notices of
101 violation where permitted, for any violation of this code which the officer is authorized to
102 enforce in the manner provided by AS 12.25.180 through 12.25.230. Borough code
103 enforcement officers appointed under the authority of this section shall not have the
104 general authority of police officers.
105
106 1.20.040 Application of fine schedule.
107 A. For voluntary disposition after either arraignment or application for entry of a default
108 judgment, the alleged violator may submit the amount set forth in the fine schedule, along
109 with the required statutory police training surcharge, to the court.
110
111 B. In the event any penalties or fines are not paid within 30 days after the date they are due
112
113
114 C. Notwithstanding other provisions of this section, delinquent penalties and fines may be
115 collected through any lawful means. The cost of collection of such accounts shall be added
116 to the amount owed.
117
118 1.20.050 Fine schedule.
119 A schedule of fines shall be reviewed and adopted by ordinance annually by the borough
120 assembly. The community development director shall review the fines for consistency
121
122 the borough assembly for consideration during its review of the schedule of fines.
123
124 Section 3: Kodiak Island Borough Code section 6.04.270, Penalties and remedies, is
125 amended to read as follows:
126
127 6.04.270 Penalties and remedies.
128 A. In accordance with AS 29.25.070(a), citations for the certain offenses violations of Chapter
129 6.04 KIBC may be disposed of as provided in AS 12.25.195 through 12.25.230, without a court
130 appearance, upon payment of the fine amounts established in a schedule of fines adopted by the
131 borough assembly by ordinance resolution pursuant to Chapter 1.20 KIBC, plus the state
132 surcharge required by AS 12.55.039 and 29.25.074. The Rules of Minor Offense Procedure in
133 the Alaska Rules of Court apply to all offenses listed in the established schedule of fines. Citations
134 charging these offenses must meet the requirements of Minor Offense Rule 3. Alternatively, the
Kodiak Island Borough, Alaska Ordinance No. FY2020-XX
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AGENDA ITEM #2.a.
135 person may choose to appear in court and contest the citation. If a person charged with one of
136 these offenses appears in court and is found guilty, the penalty imposed for the offense may not
137 exceed the fine amount for that offense listed. If an offense is not listed on this schedule of fines,
138 the defendant must appear in court to answer to the charges. These fines may not be judicially
139 reduced. If a person is cited for an offense for which a scheduled fine has been established under
140 this chapter and fails to pay a fine or appear in court, the citation shall be considered a summons
141 for a misdemeanor.
142
143 B. Notwithstanding the availability of any other remedy, the borough or any aggrieved person may
144 bring a civil action to enjoin any violation of this chapter. An action for injunction under this section
145 may be brought notwithstanding the availability of any other remedy. Upon application for
146 injunctive relief and the finding of an existing or threatened violation, the superior court shall enjoin
147 the violation.
148
149 C. Each act or condition violating this chapter, and each day during which the act or condition
150 exists when the owner or keeper is known to be aware of the condition, shall be a separate and
151 distinct violation except in circumstances where the violation is acknowledged and actively being
152 corrected.
153
154 D. The penalties provided for violation of this chapter are in addition to and not in lieu of any other
155 penalty provided for in state law or any civil remedy available to the borough.
156
157 Section 4: Kodiak Island Borough Code section 8.20.030, Penalties and remedies, is
158 amended to read as follows:
159
160 8.20.030 Penalties and remedies.
161 A. In accordance with AS 29.25.070(a), citations for the certain offenses violations of Chapter
162 8.20 KIBC may be disposed of as provided in AS 12.25.195 through 12.25.230, without a court
163 appearance, upon payment of the fine amounts established in a schedule of fines adopted by the
164 borough assembly by ordinance resolution pursuant to Chapter 1.20 KIBC, plus the state
165 surcharge required by AS 12.55.039 and 29.25.074. The Rules of Minor Offense Procedure in
166 the Alaska Rules of Court apply to all offenses listed in the established schedule of fines. Citations
167 charging these offenses must meet the requirements of Minor Offense Rule 3. Alternatively, the
168 person may choose to appear in court and contest the citation. If a person charged with one of
169 these offenses appears in court and is found guilty, the penalty imposed for the offense may not
170 exceed the fine amount for that offense listed. If an offense is not listed on this schedule of fines,
171 the defendant must appear in court to answer to the charges. These fines may not be judicially
172 reduced. If a person is cited for an offense for which a scheduled fine has been established in the
173 schedule of fines and fails to pay a fine or appear in court, the citation shall be considered a
174 summons for a misdemeanor. In addition, the court may order the person to gather and dispose
175 of litter in an area and for a length of time to be determined by the court.
176
177 B. Notwithstanding the availability of any other remedy, the borough or any aggrieved person may
178 bring a civil action to enjoin any violation of this chapter or to obtain damages for any injury the
179 plaintiff suffered as a result of the violation.
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180
181 C. Each act or condition violating this chapter and each day during which the act or condition
182 exists, continues or is repeated shall be a separate and distinct violation.
183
184 D. The penalties provided for violation of this chapter are in addition to and not in lieu of any other
185 penalty provided for in state law or any civil remedy available to the borough.
186
187 Section 5: Kodiak Island Borough Code section 8.25.220, Administration, implementation and
188 enforcement, is amended to read as follows:
189
190 8.25.220 Administration, implementation, and enforcement.
191 The manager is authorized to administer, implement, and enforce this chapter and promulgate
192 related solid waste policy, unless this chapter expressly names another person. The manager
193 may request assistance from other persons or request that other persons administer, implement
194 and enforce all or a portion of this chapter. Examples of other persons are:
195
196 A. The director of finance or the auditor-controller, for example, with respect to collection of user
197 fees;
198 B. City of Kodiak police department;
199 C. Borough attorney;
200 D. Other borough departments;
201 E. District attorney;
202 F. Alaska State Department of Environmental Conservation;
203 G. Alaska Department of Fish and Game;
204 H. Alaska State Troopers; and
205 I. An A Code enforcement officer designated under KIBC 1.20.040.
206
207 Section 6: Kodiak Island Borough Code section 8.25.230, Enforcement officer, is repealed.
208
209 8.25.230 Enforcement officer.
210 A. Authority. The enforcement officer has the authority to issue citations, summons, and
211 complaints, or notices of violation to anyone who violates this chapter.
212 B. Citation. A citation filed in the district court charging a violation under this chapter is deemed
213 as a lawful complaint for purposes of prosecution under this chapter.
214
215 Section 7: Kodiak Island Borough Code section 9.10.060, Penalty, is amended to read as
216 follows:
217
218 9.10.060 Penalty.
219 Penalties for violations of this chapter are as provided in Chapter 1.20 KIBC. In accordance with
220 AS 29.25.070(a), citations for the certain offenses violations of Chapter 9.10 KIBC may be
221 disposed of as provided in AS 12.25.195 through 12.25.230, without a court appearance, upon
222 payment of the fine amounts established in a schedule of fines adopted by the borough assembly
223 by ordinance resolution pursuant to Chapter 1.20 KIBC, plus the state surcharge required by AS
224 12.55.039 and 29.25.074. The Rules of Minor Offense Procedure in the Alaska Rules of Court
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225 apply to all offenses listed in the established schedule of fines. Citations charging these offenses
226 must meet the requirements of Minor Offense Rule 3. Alternatively, the person may choose to
227 appear in court and contest the citation. If a person charged with one of these offenses appears
228 in court and is found guilty, the penalty imposed for the offense may not exceed the fine amount
229 for that offense listed. If an offense is not listed on this schedule of fines, the defendant must
230 appear in court to answer to the charges. These fines may not be judicially reduced. If a person
231 is cited for an offense for which a scheduled fine has been established in the schedule of fines
232 and fails to pay a fine or appear in court, the citation shall be considered a summons for a
233 misdemeanor.
234
235 Section 8: Kodiak Island Borough Code section 9.20.020, Interference with a peace officer,
236 is amended to read as follows:
237
238 9.20.020 Interference with a peace borough code enforcement officer.
239 No person may interfere with a peace borough code enforcement officer while he is in the
240 performance of his duties. A person who does any of the following is guilty of
241 interfering with a peace borough code enforcement officer:
242
243 A. By use or threat of force or violence, the person he prevents or attempts to prevent a peace
244 borough code enforcement officer from carrying out his duties;
245 B. By use or threat of force or violence, the person he attempts to aid or aids a person in
246 preventing a borough code enforcement peace officer from carrying out his duties;
247 or
248
249 C. With intent to delay or prevent a borough code enforcement peace officer from discharging
250 the person he in any manner physically impedes or hinders the
251 borough code enforcement peace officer.
252
253 Section 9: Kodiak Island Borough Code section 9.20.030, Penalty, is amended to read as
254 follows:
255
256 9.20.030 Penalty.
257 A person who interferes with, unlawfully assaults or threatens, or unlawfully strikes or wounds a
258 peace borough code enforcement officer in violation of KIBC 9.20.020 while he is performing
259 his duties is guilty of a violation misdemeanor, punishable by a fine of not more than $500.00 or
260 by imprisonment in jail for not more than 30 days, or by both, in addition to the surcharge required
261 to be imposed under AS 12.55.039.
262
263 Section 10: Kodiak Island Borough Code section 10.10.080, Penalties and remedies, is
264 amended to read as follows:
265
266 10.10.080 Penalties and remedies.
267 A. In accordance with AS 29.25.070(a), citations for the certain offenses violations of Chapter
268 10.10 KIBC may be disposed of as provided in AS 12.25.195 through 12.25.230, without a court
269 appearance, upon payment of the fine amounts established in a schedule of fines adopted by the
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270 borough assembly by ordinance resolution pursuant to Chapter 1.20 KIBC, plus the state
271 surcharge required by AS 12.55.039 and 29.25.074. The Rules of Minor Offense Procedure in
272 the Alaska Rules of Court apply to all offenses listed in the established schedule of fines. Citations
273 charging these offenses must meet the requirements of Minor Offense Rule 3. Alternatively, the
274 person may choose to appear in court and contest the citation. If a person charged with one of
275 these offenses appears in court and is found guilty, the penalty imposed for the offense may not
276 exceed the fine amount for that offense listed. If an offense is not listed on this schedule of fines,
277 the defendant must appear in court to answer to the charges. These fines may not be judicially
278 reduced. If a person is cited for an offense for which a scheduled fine has been established in the
279 schedule of fines and fails to pay a fine or appear in court, the citation shall be considered a
280 summons for a misdemeanor.
281
282 B. Notwithstanding the availability of any other remedy, the borough or any aggrieved person may
283 bring a civil action to enjoin any violation of this chapter, or to obtain damages for any injury the
284 plaintiff suffered as a result of the violation.
285
286 C. Each act or condition violated in this chapter, and each day during which the act or condition
287 exists, continues or is repeated shall be a separate and distinct violation.
288
289 D. The penalties provided for violation of this chapter are in addition to and not in lieu of any other
290 penalty provided for in state law or any civil remedy available to the borough.
291
292 Section 11: Kodiak Island Borough Code section 13.10.090, Water shortage Penalties, is
293 amended to read as follows:
294
295 13.10.090 Water shortage Penalties.
296 A. In addition to the civil penalties which may be imposed under subsections B, C and D
297 of this section, violations of this section may be subject to citation and prosecution in
298 accordance with AS 29.25.070(a) and KIBC 1.20.
299
300 B. Extreme Water Shortages Water Waste Penalty. Any person, firm, or corporation wasting
301 water, or using more than the allotted water during an extreme water shortage, shall be subject
302 to a civil penalty of $1.00 per gallon used over the allotted quota.
303
304 B C. Critical Water Shortage Water Waste Penalty. Any person, firm, or corporation wasting
305 water, or using more than the allotted quota during a critical water shortage, shall be subject to a
306 civil penalty of $10.00 per 100 gallons of water used over his or its allotted quota.
307
308 C D. Water Shortage Water Waste Penalty. Any person, firm, or corporation wasting water,
309 or using more than the allotted quota during a water shortage, shall be subject to a fine of not
310 more than $500.00 if found guilty.
311
312 Section 12: Kodiak Island Borough Code section 13.20.020, Administration enforcement
313 action, is amended to read as follows:
314
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315 13.20.020 Administration enforcement action.
316 A. In any situation in which the borough engineer, or his authorized representative, has reason to
317 believe that the public health, safety or welfare requires corrective action, he may:
318
319 1. Exercise the right to entry for investigative purposes at all reasonable times and upon
320 presentation of proper credentials. If such entry is refused, the borough engineer, or
321 authorized representative, shall have recourse to every remedy provided by law to secure
322 entry;
323
324 2. Order any work being done contrary to the provisions of this title to be stopped by serving
325 notice on any persons engaged in doing or causing the work to be done, and any such
326 persons shall forthwith stop such work until authorized in writing to proceed. If the order is
327 issued verbally, a written order shall be issued prior to the conclusion of the next regular
328 workday stating the nature of the work to be stopped; and
329
330 3. Order the abatement of any condition affecting the public health, safety, and welfare. If the
331 order is given verbally, a written order shall be issued prior to the conclusion of the next
332 regular workday setting forth the nature of the abatement action and the time allowed for
333 compliance.
334
335 B. Upon complaint by a citizen, or upon his own initiative, the borough engineer may, after
336 investigation, initiate criminal proceedings against any person for the violation of this title. Except
337 for prosecution for failing to comply with an order issued under subsection A of this section, the
338
339 criminal proceedings only if the violation is not cured, and if the person who is the subject of the
340 notice fails to seek appropriate administration relief within the notice period.
341
342 Section 13: Kodiak Island Borough Code section 13.20.050, Penalties and remedies, is
343 amended to read as follows:
344
345 13.20.050 Penalties and remedies.
346 A. A person who violates any provision of this title, or any order issued under KIBC 13.20.020(A),
347 is guilty of a violation misdemeanor and, upon conviction, is punishable by a fine of not more
348 than $500.00 for each day of violation, in addition to the surcharge required to be imposed under
349 AS 12.55.039.
350
351 B. The borough or any aggrieved person may bring a civil action to enjoin any violation of this
352 title, or the violation of any order issued under KIBC 13.20.020(A), and to obtain damages for any
353 injury the plaintiff suffered as the result of the violation. An action for injunction under this section
354 may be brought notwithstanding the availability of any other remedy. Upon application for
355 injunctive relief and a finding of an existing or threatened violation, the superior court shall enjoin
356 the violation.
357
358 Section 14: Kodiak Island Borough Code section 15.50.030, Penalties and remedies, is
359 amended to read as follows:
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360
361 15.50.030 Penalties and remedies.
362 A. A person who violates any provision of this title or any order issued under KIBC 15.50.010 is
363 guilty of a violation misdemeanor and upon conviction is punishable by a fine of not more than
364 $300.00, in addition to the surcharge required to be imposed under AS 12.55.039. Each day of
365 violation constitutes a separate offense.
366
367 B. The borough or any aggrieved person may bring a civil action to enjoin any violation of this
368 title, or any order issued under KIBC 15.50.010, and to obtain damages for any injury the plaintiff
369 suffered as a result of the violation. An action for injunction under this section may be brought
370 notwithstanding the availability of any other remedy. Upon application for injunctive relief and the
371 finding of an existing or threatened violation, the superior court shall enjoin the violation.
372
373 C. Each act or condition violating this title or any order issued under KIBC 15.50.010, and each
374 day during which the act or condition exists, continues, or is repeated shall be a separate and
375 distinct violation.
376
377 D. The penalties provided for violation of this chapter are in addition to and not in lieu of any other
378 penalty provided for in state law or any civil remedy available to the borough.
379
380 Section 15: Kodiak Island Borough Code section 16.10.030, Scope and jurisdiction, is
381 amended to read as follows:
382
383 16.10.030 Scope and jurisdiction.
384 A. This title governs the subdivision of all land within the borough. No subdivision plat requiring
385 borough approval shall be recorded unless approved by the borough or a standard subdivision
386 agreement has been executed with the borough.
387
388 B. These subdivision regulations do not apply to any lot or subdivision legally created and filed
389 for record prior to the effective date of these regulations, nor to subdivisions given preliminary or
390 final approval by the commission under the previously existing title, except in the instance of
391 further subdivision of existing lots or tracts.
392
393 C. The owner or agent of the owner of land located within a subdivision who transfers, sells, or
394 enters into a contract to sell land in a subdivision before a plat of the subdivision has been
395 approved and recorded is guilty of a violation misdemeanor and upon conviction is punishable
396 by a fine of not more than $300.00 for each lot or parcel transferred, sold, or included in a contract
397 to be sold. The borough may enjoin such a transfer, sale, or contract to sell and may recover the
398 penalty by appropriate legal action.
399
400 D. No agency of the state or local government may acquire property through the process of
401 eminent domain which results in a boundary change unless the agency or local government first
402 obtains from the commission preliminary approval of the replat showing clearly the location of the
403 proposed public streets, easements, rights-of-way, and other taking of private property.
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404 Final approval of the replat shall be obtained within six months of the acquisition. The commission
405 shall treat applications for replat made by state or local governmental agencies in the same
406 manner as replat petitions originated by private land owners.
407
408 E. No person may file a plat or seek to have a plat filed unless it bears the approval of the borough.
409 A person who knowingly violates this requirement is punishable upon conviction by a fine of not
410 more than $300.00.
411
412 F. The borough or any aggrieved person may bring a civil action to enjoin any violation of this title,
413 any transfer or sale of an unlawfully subdivided parcel, the violation of any term or condition of
414 any plat or other entitlement approved under this title, and to obtain damages for any injury the
415 plaintiff suffered as a result of the violation. An action for injunction under this section may be
416 brought notwithstanding the availability of any other remedy. Upon application for injunctive relief
417 and a finding of an existing or threatened violation, the superior court shall enjoin the violation.
418
419 Section 16: Kodiak Island Borough Code Chapter 17.210, Enforcement, Penalties and
420 Remedies, is amended to read as follows:
421
422 Chapter 17.210
423 ENFORCEMENT, PENALTIES AND REMEDIES
424
425 Sections:
426 17.210.010 Administrative enforcement action.
427 17.210.020 Administrative inspections.
428 17.210.030 Penalties and remedies.
429 17.210.040 Responsibility for violations.
430
431 17.210.010 Administrative enforcement action.
432 A. The zoning officer manager or designee may order:
433
434 1. The discontinuation of unlawful uses of land or structures;
435 2. The removal or abatement of unlawful structures, or any unlawful additions or alterations
436 thereto;
437 3. The discontinuation of construction or other preparatory activity leading to an unlawful
438 structure or an unlawful use of a land or structure;
439 4. When necessary to ensure compliance with this title, the suspension or revocation of
440 building permits, variances, or other borough land use entitlements.
441
442 B. Upon complaint by a citizen, or upon histheir own initiative, the any borough code
443 enforcement officer authorized to enforce this title zoning officer may, after investigation,
444 initiate criminal proceedings against any person for the violation of this title. Except for
445 prosecutions for failing to comply with an order issued under subsection A of this section or where
446 the protection of public health and safety require immediate action, the borough code
447 enforcement officer zoning officer
448 and may initiate criminal proceedings only if the violation is not cured within the notice period.
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449
450 17.210.020 Administrative inspections.
451 In accordance with this section, the a borough code enforcement officer authorized to enforce
452 this title zoning officer may make inspections necessary to enforce the provisions of this title.
453 When the borough code enforcement officer zoning officer has reasonable cause to believe
454 that in any building or on any premises there exists any violation of this title, he the officer may
455 enter such building or premises at any reasonable time to inspect the same or perform any of his
456 the officer duties under this title; provided, that where the Constitution of the United States or
457 the state of Alaska requires that the borough code enforcement officer zoning officer obtain a
458 search warrant before making an inspection, he the officer shall not make the inspection until
459 authorized to do so by a search warrant issued by a court of competent jurisdiction.
460
461 17.210.030 Penalties and remedies.
462 A. A person who violates any provision of this title, an order issued under KIBC 17.210.010(A) or
463 any term or condition of a conditional use, variance or other entitlement issued under this title, is
464 guilty of an infraction misdemeanor and upon conviction is punishable by a fine of not more than
465 $300.00, in addition to the surcharge required to be imposed under AS 12.55.039.
466
467 B. Notwithstanding the availability of any other remedy, the borough or any aggrieved person may
468 bring a civil action to enjoin any violation of this title, any order issued under KIBC 17.210.010(A),
469 or any term or condition of a conditional use, variance or other entitlement issued under this
470 chapter; or to obtain damages for any injury the plaintiff suffered as a result of a violation. An
471 action for injunction under this section may be brought notwithstanding the availability of any other
472 remedy. Upon application for injunctive relief and the finding of an existing or threatened violation,
473 the superior court shall enjoin the violation.
474
475 C. Each act or condition violating this title, any order issued under KIBC 17.210.010(A), or any
476 term or condition of a conditional use, variance, or other entitlement issued under this title, and
477 each day during which the act or condition exists, continues or is repeated shall be a separate
478 and distinct violation.
479
480 D. The penalties provided for violation of this chapter are in addition to and not in lieu of any other
481 penalty provided for in state law or any civil remedy available to the borough.
482
483 17.210.040 Responsibility for violations.
484 The record owner, and any person in possession or control of property maintained in
485 violation of this title is responsible for the violation and is subject to prosecution in
486 accordance with Chapter 1.20 KIBC and this Chapter 17.210.
487
488 Section 17: Kodiak Island Borough Code section 18.35.050, Penalties and remedies, is
489 amended to read as follows:
490
491 18.35.050 Penalties and remedies.
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492 A. A person who violates the provisions of this chapter is guilty of aviolation misdemeanor and
493 upon conviction is punishable by a fine of not more than $300.00, in addition to the surcharge
494 required to be imposed under AS 12.55.039.
495
496 B. Notwithstanding the availability of any other remedy, the borough or any aggrieved person may
497 bring a civil action to enjoin any violation of this chapter, or to obtain damages for any injury the
498 plaintiff suffered as a result of the violation.
499
500 C. Each act or condition violating this chapter, and each day during which the act or condition
501 exists, continues or is repeated, shall be a separate and distinct violation.
502
503 D. The penalties provided for violation of this chapter are in addition to and not in lieu of any other
504 penalty provided for in state law or any civil remedy available to the borough.
505
506 Effective Date: This ordinance takes effect upon adoption. (Note: KIBC 2.30.070 states an
507 ordinance takes effect upon adoption or at a later date specified in the ordinance.)
508
509 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH
510 THIS __________ DAY OF _______________, 2019.
511
512 KODIAK ISLAND BOROUGH ATTEST:
513
514
515 ___________________________ ___________________________
516 Daniel A. Rohrer, Mayor Tara Welinsky, Clerk
517
518 VOTES:
519 Ayes:
520 Noes:
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AGENDA ITEM #2.a.
1 Introduced by: Borough Manager
2 Drafted by: Borough Manager
3 Introduced on:
4 Public Hearing Date:
5 Adopted on:
6 KODIAK ISLAND BOROUGH
7 ORDINANCE NO. FY2020-XX
8
9 AN ORDINANCE OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH
10 REESTABLISHING A SCHEDULE OF FINES FOR CERTAIN VIOLATIONS OF BOROUGH
11 CODE
12
13 WHEREAS, as a second class borough, the Kodiak Island Borough exercises certain
14 enforcement powers, which include the ability to levy fines and penalties in accordance with
15 Borough Code and AS 29.25.070; and
16
17 WHEREAS, Borough Code contains references and authority to levy fines and penalties in Title
18 1 (General Provisions), Title 6 (Animals), Title 8 (Healthy and Safety), Title 9 (Public Peace,
19 Morals and Welfare), and Title 10 (Vehicles and Traffic); and
20
21 WHEREAS, in 2014 the Borough Assembly chose to proceed with modifications to Borough
22 Code and other Borough processes to accommodate inclusion of certain Borough Code violations
23 in the Alaska Uniform Minor Offense Table (UMOT), to allow enforcement with citations; and
24
25 WHEREAS, AS 29.25.070(a) requires the adoption of UMOT-related fines via ordinance; and
26
27 WHEREAS, the Assembly finds that it is in the public interest for the Borough to enable Borough
28 staff to enforce Borough Code using the UMOT process through the Alaska Court system.
29
30 NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KODIAK ISLAND
31 BOROUGH THAT:
32
33 Section 1: This ordinance is NOT of a general and permanent nature and shall NOT become
34 a part of the Kodiak Island Borough Code of Ordinances.
35
36 Effective Date: This ordinance takes effect upon adoption.
37
38 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH
39 THIS __________ DAY OF _______________, 2019.
40
41 KODIAK ISLAND BOROUGH ATTEST:
42
43
44 ___________________________ ___________________________
45 Daniel A. Rohrer, Mayor Tara Welinsky, Clerk
Kodiak Island Borough, Alaska Ordinance No. FY2020-XX
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46
47 VOTES:
48 Ayes:
49 Noes:
50
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* Penalties and remedies for Chapter 6.04 (Animal Control) violations are set in KIBC 6.04.270.
* Penalties and remedies for Chapter 8.20 (Littering) violations are set it KIBC 8.20.030.
* Penalties and remedies for Chapter 8.25 (Solid Waste Collection and Disposal) violations are set it KIBC 8.25.240.
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* Penalties and remedies for Chapter 8.40 (Motorized Watercraft) violations are set it KIBC 8.40.025.
* Penalties and remedies for Chapter 9.10 (Fireworks Control) violations are set it KIBC 9.10.060.
* All listed offenses can be disposed of without a court appearance by payment of the fine.
* Payment amounts set forth in this fine schedule, plus a 10% surcharge, can be made to the court. Payments not made within 30 days of their due date
are considered delinquent and may be collected by any lawful means. See KIBC 1.20.040 (Application of Fine Schedule) for more details.
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AGENDA ITEM #2.b.
KODIAK ISLAND BOROUGH
STAFF REPORT
AUGUST 29, 2019
ASSEMBLY WORK SESSION
SUBJECT: KIB Ordinance FY2019-20 Amending Chapters 17.160 KIBC (Accessory
Buildings and Accessory Dwelling Units), And Related Chapters 17.65 KIBC
(RR - Rural Residential District) and 17.70 KIBC (RR1 - Rural Residential One
District) To Change Permitted Uses, Conditional Uses and Development
Standards Related to Parking and Size Limit.
ORIGINATOR: Scott Arndt
RECOMMENDATION:
Staff recommends that the Assembly approve KIB Ordinance FY2019-20 - Version 2
DISCUSSION:
At their August 21, 2019 regular meeting, the Planning & Zoning Commission moved to recommend
that the Assembly of the Kodiak Island Borough approve the ordinance, Version 2, amending Chapter
17.160 KIBC (Accessory buildings and accessory dwelling units) and related chapters 17.65 (RR-Rural
Residential) and Chapter 17.70 (RR1-Rural Residential One District) to change permitted uses,
conditional uses and development standards related to parking and size limit, and adopt the Findings of
Fact in the staff report dated July 3, 2019 entered int
Case No. 19-030.
ALTERNATIVES:
FISCAL IMPACT:
OTHER INFORMATION:
Kodiak Island Borough
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AGENDA ITEM #2.b.
Kodiak Island Borough
Community Development Department
710 Mill Bay Road
Kodiak, Alaska 99615
Phone (907) 486-9362 Fax (907) 486-9396
ewelty@kodiakak.us
Memorandum
Date: August 22, 2019
To: Mr. Michael Powers, Borough Manager
From: Erin Welty, Acting Director
RE: Transmittal of Ordinance FY2019-20, information for the August 29 Assembly work session
agenda.
The Kodiak Island Borough Planning and Zoning Commission, as required per KIBC 17.05, hereby
transmits the August 21, 2019 Ordinance FY2019-020 and meeting materials, for the
consideration of the Kodiak Island Borough Assembly.
The P&Z Commission recommends approval of this ordinance. The Planning and Zoning
Commission at their meeting on August 21, 2019 moved to forward the ordinance,
recommending approval, to the Borough Assembly. The Commission received no public
comments opposing this request at two (2) public meetings and found the request to be
consistent with the goals and objectives of the adopted comprehensive plan.
Based on recent applications for variances from the current 480 square feet, staff feels these
changes are important and address an ever-increasing affordable housing need in Kodiak. Staff’s
recommendation to the Assembly remains the same as stated in the July 3, 2019 staff report to
the Planning & Zoning Commission.
Additionally, staff would like to take this opportunity to highlight the need for future conversation
regarding code creation to address Vacation Rentals by Owners, or houses and accessory
dwelling units utilized as transient housing accommodations. We do not believe it is something
to be addressed in this code amendment but would like the Assembly to begin thinking about it
so that the community of Kodiak can address what has become a significant land use/zoning issue
in other communities.
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AGENDA ITEM #2.b.
VERSION 2
1 Introduced by:Assembly Member Arndt
2 Drafted by:Assembly Member Arndt
3 Introduced on:06/20/2019
4 Public Hearing Date:09/05/2019
5 Adopted on:
6
7 KODIAK ISLAND BOROUGH
8 ORDINANCENO. FY2019-20
9
10 AN ORDINANCEOF THE ASSEMBLY OF THE KODIAK ISLANDBOROUGH AMENDING
11 CHAPTER 17.160 KIBC (ACCESSORY BUILDINGS AND ACCESSORY DWELLING UNITS),
12 AND RELATED CHAPTERS 17.65 KIBC (RR –RURAL RESIDENTIAL) AND CHAPTER 17.70
13(RR1 –RURAL RESIDENTIAL ONE DISTRICT) TO CHANGE PERMITTED USES,
14 CONDITIONAL USES AND DEVELOPMENT STANDARDS RELATED TO PARKING AND
15 SIZE LIMIT
16
17 WHEREAS, the Kodiak Island Borough has adopted KIBC Title 17 (Zoning) in accordance with
18 AS 29.40 to implement the Kodiak Island Borough Comprehensive Plan; and
19
20 WHEREAS, KIBC 17.205.010 provides that “Whenever the public necessity, convenience,
21 general welfare or good zoning practice requires, the assembly may, by ordinance and after
22 report thereon by the commission and public hearing as required by law, amend, supplement,
23 modify, repeal or otherwise change these regulations and the boundaries of the districts”; and
24
25 WHEREAS, the public necessity and general welfare of the community may be better servedby
26 amending the code to include development standards and zoning requirements for accessory
27 dwelling units and to list them as a permitted use in certain residential zoning districts; and
28
29 WHEREAS, the amendments to Chapters 17.160 KIBC (Accessory Buildings and Accessory
30 Dwelling Units),17.65KIBC (RR-Rural Residential), and 17.70 (RR1-Rural Residential One), of
31 Title 17 will accomplish the stated public need.
32
33 NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KODIAK ISLAND
34 BOROUGH THAT:
35
36 Section 1:This ordinance isof a general and permanent nature and shall become a part of
37 the Kodiak Island BoroughCode of Ordinances.
38
39 Section 2:Title 17 of the Kodiak Island Borough Code of Ordinances is amended to read as
40 follows:
41
42 Chapter 17.65
43 RR–RURAL RESIDENTIAL DISTRICT
44…
45 17.65.030 Permitted accessoryuses and structures.
46 A. Accessory buildings.;
47 B. Home occupations.;
48 C. Hoop houses.; and
49 D. Accessory dwelling units (ADUs).
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50
51 17.65.040 Conditional uses.
52 The following land uses may be permitted by obtaining a conditional use permit in accordance
53 with Chapter 17.200 KIBC:
54 A. Firework stands;
55 B. Recreational vehicle parks; and
56 C.Accessory dwelling units (ADUs).
57
58 Chapter 17.70
59 RR1 –RURAL RESIDENTIAL ONE DISTRICT
60…
61 17.70.020 Permitted uses.
62 The following land uses are permitted in the rural residential one district:
63 A. Accessory buildings;
64 B. Agricultural buildings and activities;
65 C. Churches;
66 D. Fishing activities when an owner-occupied dwelling is present on the premises;
67 E. Greenhouses;
68 F. Horticultural buildings and activities;
69 G. Single-family dwellings;
70 H. Home occupations;
71 I. Vacation homes;
72 J. Bed and breakfasts;
73 K. Recreational cabins;
74 L. Hoop houses; and
75 M. Accessory dwelling units (ADUs)(attached).
76
77 17.70.030 Conditional uses.
78 The following land uses may be allowed by obtaining a conditional use permit in accordance
79 with
80 the provisions of Chapter 17.200 KIBC:
81 A. Fireworks stands;
82 B. Recreational vehicle parks; and
83 C. Marijuana cultivation, limited (lots equal to or greater than 40,000 square feet).; and
84 D. Accessory dwelling units (ADUs) (detached).
85
86 Chapter 17.160
87 ACCESSORY BUILDINGS AND ACCESSORY DWELLING UNITS
88…
89 17.160.070 Accessory dwelling units.
90 A. Intent. Accessory dwelling units (ADUs) 46 add options and housing choice in residential
91 neighborhoods and can be an effective way to add affordable housing to existing
92 neighborhoods. ADUs also provide a flexible way to address family needs for additional
93 housing. ADUs are not intended for use as transient housing and shall not be permitted for use
94 as a bed and breakfast.
95 1. ADUs are not intended to allow a two-family residence in any single-family residential
96 zoning district.
97 2. ADUs are not intended tocircumvent the parking requirements for a two-family
98 dwelling(duplex) in the R-2 zoning district.
99 B. Permitted Uses.
100 1. ADUs are a permitted use in the following residential zoning districts:
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101 a. Chapter 17.50 KIBC, C –Conservation District;
102 b. Chapter 17.60 KIBC, RR2 –Rural Residential Two District;
103 c. Chapter 17.65 KIBC, RR –Rural Residential District;
104 d.c.Chapter 17.70 KIBC, RR1 –Rural Residential One District (attached);
105 e.d.Chapter 17.75 KIBC, R1 –Single-family Residential District (attached);
106 f.e.Chapter 17.80 KIBC, R2 –Two-family Residential District.
107 C. Conditional Uses.
108 1. ADUs are a conditional use in the following residential zoning districts:
109 a. Chapter 17.65 KIBC, RR –Rural Residential District;
110 b. Chapter 17.70 KIBC, RR1 –Rural Residential One District (detached);
111 a.c.Chapter 17.75 KIBC, R1 –Single-family Residential District (detached).
112 D. Development Standards for ADUs.
113 1. Only one ADU shall be permitted on a lot.
114 2. Location. An ADU may be attached to or located within a single-family residence or
115 within a detached accessory building on the same lot as the single-family residence or
116 asa separate structure on that lot. If the ADU is located within a single-family dwelling,
117 thereshall only be one entrance to the front of the house. Separate entrances to an ADU
118 locatedwithin the principal dwelling or attached to it are permitted at the side or the rear
119 of theprincipal dwelling unit.
120 3. ADUs are required to comply with all applicable building and fire code requirements.
121 4. Water Supply and Wastewater Disposal. The accessory dwelling unit must have a
122 bathroom and shall share the same sewage disposal and water supply systems (e.g., a
123 well and septic system or connection to public water and sewer) as the principal dwelling
124 unit unless separate sewer and water connections are required by the city of Kodiak,
125 ADEC, or the communities of Ahkiok, Karluk, Larsen Bay, Old Harbor, Ouzinkie, or Port
126 Lions.
127 5. One additional parking space is required with an ADU.Parking.
128 a. Five off-street parking spaces are required for any lot with an ADU that is
129 600 square feet or less (3 for the existing dwelling unit and 2 for the ADU).
130 b. Six off-street parking spaces are required for any lot with an ADU that is
131 greater than600 square feet (3 for the existing dwelling unit and 3 for the
132 ADU).
133 6. Size Limit.
134 a. An ADU shall be limited to 480 square feet or less.An ADU shall be limited
135 to575 square feet or less in the R1 and R2 Districts. In all other districts an
136 ADU shall be limited to 725 square feet or less.
137 b. Mobile homes, recreational vehicles, campers, and travel trailers are not
138 permitted to be used as an ADU.
139 7. The owner of the property shall live in the principal dwelling or the ADU.
140 8. No new access points or driveways shall be created or installed for access to the
141 ADU.
142 9. Nonconforming Structures.
143 a. ADUs may be located within an existing single-family detached dwelling that is
144 nonconforming with respect to required setbacks, provided the ADU requirement
145 for off-street parking is met.
146 b. ADUs are prohibited in any accessory structure that is nonconforming with
147 respect to required setbacks.
148 10. Access for Emergency Services Providers.
149 a. The zoning compliance permit and site plan for an ADU must show the
150 locationof an unobstructed route of travel from the street to the ADU entrance.
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151 b. Exterior doors and openings required by this code or the IBC shall be
152 maintainedreadily accessible for emergency access by the fire department. An
153 approvedaccess walkway leading from the apparatus access roads to exterior
154 openingsshall be provided when required by the fire code official.
155
156 Effective Date: This ordinance takes effect upon adoption. (Note: KIBC 2.30.070 states an
157 ordinance takes effect upon adoption or at a later date specified in the ordinance.)
158
159 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH
160 THIS __________ DAY OF _______________,2019.
161
162 KODIAK ISLAND BOROUGHATTEST:
163
164
165______________________________________________________
166 Daniel A. Rohrer,MayorTara Welinsky, Clerk
167
168 VOTES:
169 Ayes:
170 Noes:
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STAFF REPORT AND RECOMMENDATION
Case No. 19-030. An ordinance amending Chapter 17.160 KIBC (Accessory buildings and
accessory dwelling units) and related chapters 17.65 (RR-Rural Residential) and Chapter 17.70
(RR1-Rural Residential One District) to change permitted uses, conditional uses and
development standards related to parking and size limit.
DATE:July 3,2019
TO:Planning and ZoningCommission
FROM:Community Development Department
SUBJECT:Staff Report and Recommendation
CASE:19-030
APPLICANT:Kodiak Island Borough Community Development Department
LOCATION:N/A
LEGAL DSC:N/A
ZONING:N/A
NOTICE: Notice was provided in the Kodiak Daily Mirror (meets Alaska Open Meetings Act
requirements).No written public comments had been received as of the date this
report was prepared.
SITE VISIT:N/A
1.Applicable Regulations:The following sections of Title 17(Zoning) of the Borough Codeare
applicable to this request:
17.05.010 Authority
In accordance with the provisions of AS29.40.040, Land use regulation, this title is enacted for
the regulation of the use of land in the Kodiak Island Borough.
17.050.020Purpose
It is the purpose of this title to promote public health, safety, and general welfare through the use
of uniform district regulations concerning:
A.Land use;
B.Building location and use;
C.The height and size of structures;
D.The number of stories in buildings;
E.The percentage of a lot which may be covered;
F.The size of opens spaces; and
G.Population density and distribution.
17.15.020Conformity with regulations required.
No building, part of a building, or an land shall be used, occupied, erected, moved, or altered
unless in conformity with the provisions of this title for the district in which the building or land is
located.
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STAFF ANALYSIS
These changes to the ADU code and, subsequently, two zoning districts were introduced to the
Assembly as Ordinance FY2019-20 at the June 20, 2019regular meeting. The Assembly then
remanded it to Planning and Zoning for review, with a return deadline of September 6, 2019.
In recent months, the commission has heardtwo variance requests to allow detached accessory
dwelling units to exceed the permitted 480 square feet; one by 140 square feet and one by 220
square feet. Both variances would meet the proposed square foot requirement of 725 or less in
their specific zoning districts. Both variances were approved unanimously by the commission.
Both of the requests were for situations involving Kodiak residents choosing to age in place,
which is defined by the US Centers for Disease Control and Prevention as “the ability to live in
one's own home and community safely, independently, and comfortably, regardless of age,
income, or ability level.” Aging in place is becoming a growing trend, as the population of
Americans reachingthe age of 65 and oldergrows each year.
With Kodiak’s high housing and rent prices, ADU’s offer an affordable option for people entering
retirement years to remain in Kodiak and remain in or near their homes. They can live in
smaller spaces attached or detached to the main home, while they rentout the larger portion of
the home.
The issueat handis whether 480 square feet is enough space to live in comfortably.
Additionally, from a planning perspective, the commission must consider the desire of the
community and tolerable density in each specific zoning district.
The ordinance before you proposes to make attached ADU’s a permitted use in the Rural
Residential (RR) district and to make detached ADU’s a permitted use in Rural Residential and
Rural Residential One district. They are already a permitted use in other single and two-family
zoning districts. This would eliminate the need for residentsin those districts to appear before
the commission for a Conditional Use Permit.
The ordinance also proposed to change the size limit of ADU’s from the current 480 square feet
to 575 square feet or less in the R1 and R2 (urban zoning districts) and to 725 square feetor
less in all other districts (rural districts). This would raise the allowable square footage in the
urban districts by 95 square feet and by 245 square feet in rural districts, where lots are larger.
The ordinance also proposes to change the parking requirements for ADU’s. The proposal is to
raise the required number of parking space for any ADU 600 square feet or less to two spaces
(in addition to the three required for the main structure) and to three spaces for any ADU greater
than 600 square feet (in addition to three required for the main structure).
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Modification of the ADU size limit would eliminate many of the variance requests for ADU’s, which
improves the efficiency of the Community Development Department and reduces the burden on
the Planning and Zoning Commission.
Theproposed amendments areconsistent with the following Local Government,Land Use and
Housing goalsandimplementation actions ofthe adopted Comprehensive Plan:
Local GovernmentGoal:Improve the efficiency of service provision among government
agencies within the Borough.
Land Use Goal:Regulate and manage land uses to balance the rights of private property
owners with community values and objectives
Land Use Goal:Continue to update and improve the effectiveness of Borough policies,
plans, regulations, and procedures.
Land Use Implementation Action:Update and enhance the KIB Zoning Ordinance, as well
as other planning procedures to meet land use and planning goals cost-effectively and
efficiently.
Housing Goal: Help ensure that an adequate supply of land for housing and a sufficient
stock of housing, including affordable housing, are available for Borough residents.
CONCLUSION
Staff has determinedthatthis amendment is consistent with the objectives of the adopted
Comprehensive Plan and satisfies the purpose and statutory authority of Title 17(Zoning).
RECOMMENDATION
Staff recommends that the Commission forward this ordinance to the Borough Assembly with a
recommendation for approval.
APPROPRIATE MOTION
Should the Commission agree with the staff recommendation, the appropriate motion is:
Move to recommend that the Assembly of the Kodiak Island Borough approve the
ordinanceamendingChapter 17.160 KIBC (Accessory buildings and accessory
dwelling units) and related chapters 17.65 (RR-Rural Residential) and Chapter
17.70 (RR1-Rural Residential One District) to change permitted uses, conditional
uses and development standards related to parking and size limit,and adopt the
Findings of Fact in the staff report dated July 3, 2019 entered into the record for
this case as “Findings of Fact” for Case No. 19-030.
FINDINGS OF FACT (KIBC 17.205.020)
1.Based on applications to Planning and Zoning, the 480 square foot size limit does not
satisfy the needs of many ADU applicants.
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2.This ordinance is consistent with local government,land use and housing goals and
implementation actions identified in the 2008 Comprehensive Plan.
3.The Planning and Zoning Commission recommendedthat the Borough Assembly
approve this ordinance.
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PUBLIC HEARING ITEM E
JULY 17, 2019 PLANNING AND ZONING REGULAR MEETING
CASE 19-030
480 sf
600 sf
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1 Introduced by:Assembly Member Arndt
VERSION 1
2 Drafted by:Assembly Member Arndt
3 Introduced on:06/20/2019
4 Public Hearing Date:09/05/2019
5 Adopted on:
6
7 KODIAK ISLAND BOROUGH
8 ORDINANCENO. FY2019-20
9
10 AN ORDINANCE OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH AMENDING
11 CHAPTER 17.160KIBC (ACCESSORY BUILDINGS AND ACCESSORY DWELLING UNITS),
12 AND RELATED CHAPTERS 17.65 KIBC (RR –RURAL RESIDENTIAL) AND CHAPTER 17.70
13(RR1 –RURAL RESIDENTIAL ONE DISTRICT)TO CHANGE PERMITTED USES,
14 CONDITIONAL USES AND DEVELOPMENT STANDARDS RELATED TO PARKING AND
15 SIZE LIMIT
16
17 WHEREAS,the Kodiak Island Borough has adopted KIBC Title 17 (Zoning) in accordance with
18 AS 29.40 to implement the Kodiak Island Borough Comprehensive Plan; and
19
20 WHEREAS,KIBC 17.205.010 provides that “Whenever the public necessity, convenience,
21 general welfare or good zoning practice requires, the assembly may, by ordinance and after report
22 thereon by the commission and public hearing as required by law, amend, supplement, modify,
23 repeal or otherwise change these regulations and the boundaries of the districts”; and
24
25 WHEREAS,the public necessity and general welfare of the community may be better served
26 by amending the codeto include development standards and zoning requirements for accessory
27 dwelling units and to list them as a permitted use in certain residential zoning districts; and
28
29 WHEREAS,the amendments to Chapters 17.160 KIBC (Accessory Buildings and Accessory
30 Dwelling Units),17.65 KIBC (RR-Rural Residential), and 17.70 (RR1-Rural Residential One), of
31 Title 17 will accomplish the stated public need.
32
33 NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KODIAK ISLAND
34 BOROUGH THAT:
35
36 Section 1:This ordinance is of a general and permanent nature and shall become a part of the
37 Kodiak Island Borough Code of Ordinances.
38
39 Section 2:That Title 17of the Kodiak Island Borough Code of Ordinances is amended to read
40 as follows:
41
42 Chapter 17.160
43 ACCESSORYBUILDINGS AND ACCESSORY DWELLING UNITS
44. . .
45 17.160.070 Accessory dwelling units.
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46 A. Intent. Accessory dwelling units (ADUs) add options and housing choice in residential
47 neighborhoods and can be an effective way to add affordable housing to existing neighborhoods.
48 ADUs also provide a flexible way to address family needs for additional housing. ADUs are not
49 intended for use as transient housing and shall not be permitted for use as a bed and breakfast.
50 1. ADUs are not intended to allow a two-family residence in any single-family residential
51 zoning district.
52 2. ADUs are not intended to circumvent the parking requirements for a two-family dwelling
53(duplex) in the R-2 zoning district.
54 B. Permitted Uses.
55 1. ADUs are a permitted use in the following residential zoning districts:
56 a. Chapter 17.50 KIBC, C –Conservation District;
57 b. Chapter 17.60 KIBC, RR2 –Rural Residential Two District;
58 c. Chapter 17.70 KIBC, RR1 –Rural Residential One District (attached);
59 d. Chapter 17.65 KIBC, RR –Rural Residential District;
60 e. d.Chapter 17.75 KIBC, R1 –Single-family Residential District (attached);
61 f. e.Chapter 17.80 KIBC, R2 –Two-family Residential District.
62 C. Conditional Uses.
63 1. ADUs are a conditional use in the following residential zoning districts:
64 a. Chapter 17.65 KIBC, RR –Rural Residential District;
65 b. Chapter 17.70 KIBC, RR1 –Rural Residential One District (detached);
66 a.c. Chapter 17.75 KIBC, R1 –Single-family Residential District (detached).
67 D. Development Standards for ADUs.
68 1. Onlyone ADU shall be permitted on a lot.
69 2. Location. An ADU may be attached to or located within a single-family residence or
70 within a detached accessory building on the same lot as the single-family residence or as
71 a separate structure on that lot. If the ADU is located within a single-family dwelling, there
72 shall only be one entrance to the front of the house. Separate entrances to an ADU located
73 within the principal dwelling or attached to it are permitted at the side or the rear of the
74 principal dwelling unit.
75 3. ADUs are required to comply with all applicable building and fire code requirements.
76 4. Water Supply and Wastewater Disposal. The accessory dwelling unit must have a
77 bathroom and shall share the same sewage disposal and water supply systems (e.g.,a
78 well and septic system or connection to public water and sewer) as the principal dwelling
79 unit unless separate sewer and water connections are required by the city of Kodiak,
80 ADEC, or the communities of Ahkiok, Karluk, Larsen Bay, Old Harbor, Ouzinkie, or Port
81 Lions.
82 5. One additional parking space is required with an ADU.Parking.
83 a. Five off-street parking spaces are required for any lot with an ADU that is
84 600 square feet or less (3 for the existing dwelling unit and 2 for the ADU).
85 b. Six off-street parking spaces are required for any lot with an ADU that is
86 greater than 600 square feet (3 for the existing dwelling unit and 3 for the
87 ADU).
88 6. Size Limit.
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89 a. An ADU shall be limited to 480 square feet or less.An ADU shall be limited to
90 575 square feet or less in the R1 and R2 Districts. In all other districts an
91 ADU shall be limited to 725 square feet or less.
92 b. Mobile homes, recreational vehicles, campers, and travel trailers are not
93 permitted to be used as an ADU.
94 7. The owner of theproperty shall live in the principal dwelling or the ADU.
95 8. No new access points or driveways shall be created or installed for access to the ADU.
96 9. Nonconforming Structures.
97 a. ADUs may be located within an existing single-family detached dwelling thatis
98 nonconforming with respect to required setbacks, provided the ADU requirement
99 for off-street parking is met.
100 b. ADUs are prohibited in any accessory structure that is nonconforming with
101 respect to required setbacks.
102 10. Access for Emergency Services Providers.
103 a. The zoning compliance permit and site plan for an ADU must show the location
104 of an unobstructed route of travel from the street to the ADU entrance.
105 b. Exterior doors and openings required by this code or the IBC shall be maintained
106 readily accessible for emergency access by the fire department. An approved
107 access walkway leading from the apparatus access roads to exterior openings
108 shall be provided when required by the fire code official. \[Ord. FY2017-21 §2,
109 2017\].
110
111 Chapter 17.65
112 RR–RURAL RESIDENTIAL DISTRICT
113. . .
114 17.65.040 Conditional uses.
115 The following land uses may be permitted by obtaining a conditional use permit in accordance
116 with Chapter 17.200 KIBC:
117 A. Firework stands;
118 B. Recreational vehicle parks; and
119 C. Accessory dwelling units (ADUs). \[Ord. FY2017-21 §2, 2017; Ord. 2016-07 §2, 2016; Ord. 89-
120 31-O §2, 1989. Formerly §17.16.040\].
121
122 Chapter 17.70
123 RR1–RURAL RESIDENTIAL ONE DISTRICT
124. . .
125 17.70.030 Conditional uses.
126 The following land uses may be allowed by obtaining a conditional use permit in accordance with
127 the provisions of Chapter 17.200 KIBC:
128 A. Fireworks stands;
129 B. Recreational vehicle parks;and
130 C. Marijuana cultivation, limited (lots equal to or greater than 40,000 square feet).; and
131 D. Accessory dwelling units (ADUs) (detached). \[Ord. FY2017-21 §2, 2017; Ord. FY2017-27 §2,
132 2017; Ord. FY2016-07 §2, 2016; Ord. 84-59-O §1, 1984; Ord. 83-15-O §2, 1983. Formerly
133§17.17.030\].
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134
135 Effective Date:This ordinance takes effect upon adoption. (Note: KIBC 2.30.070 states an
136 ordinance takes effect upon adoption or at a later date specified in the ordinance.)
137
138 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH
139 THIS __________ DAY OF _______________,2019.
140
141 KODIAK ISLAND BOROUGHATTEST:
142
143
144______________________________________________________
145 Daniel A. Rohrer,MayorTara Welinsky, Clerk
146
147 VOTES:
148 Ayes:
149 Noes:
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AGENDA ITEM #4.a.
Clerk’s Comments – Assembly Attendance
th
After the last regular meeting on August 15
, the Clerk’s Office was asked to research the current
Borough policy on Assembly member attendance.
Specifically:
if Assembly members could be “excused” if they missed a meeting for work purposes
if there was anything in the code defining good cause or giving guidance/criteria in regards to
when the Assembly should excuse an absence or not
are there legal opinions on what constitutes a “meeting” for purposes of determining if an
Assembly member has missed half of the meetings in a one-year period
After reading the KIB code and consulting with the former Borough Clerk and the Borough’s lawyer,
Scott Brandt-Erichsen, I have come to the following conclusions:
There are currently no criteria defining good cause or giving guidance in regards to Assembly
member absences. KIB code 2.25.070 states: No member of the assembly may absent himself
from any regular or special meeting of the assembly except for good cause. An assembly
member who is unable to attend a meeting shall advise the clerk or the mayor of the
contemplated absence and the reason for that absence. During the course of the meeting from
which the member is absent, the chair shall cause the record to reflect the absence of the
member, the reason for the absence, and whether the absence is excused by the assembly.
KIB Code 2.25.060(B) states: If a member of the governing body misses one-half of the meetings
stst
held in any year of his or her term of office, each year between November 1 and October 31,
the seat shall be automatically vacated.
There is a legal opinion from 2007 from attorney Matthew Jamin regarding Assembly Members’
absences from meetings which was reinterpreted by our lawyer, Scott Brandt-Erichsen. Note
that the audio from a meeting on January 10, 2008 in which this item was discussed is no longer
in the borough’s possession and only the minutes and packets are available for interpretation.
Mr. Brandt-Erichsen predicts that a court would say only regular and special meetings count for
the 50% standard of meeting attendance. Also, missed consecutive regular meetings are only
those meetings which are held. Meetings which have been cancelled would not be included.
According to this interpretation, work session attendance would not apply when considering
attendance. Mr. Brandt-Erichsen acknowledges that the existing code is vague as to whether
work sessions should be included in tracking Assembly attendance.
Regarding the excused versus unexcused issue, Mr. Brandt-Erichsen states that the missed
regular held meetings in KIBC 2.25.060(A)(9) includes the modifier of the absence being
unexcused. The 50% attendance standard in KIBC 2.25.060(B) contains no such limitation, so
whether the absences were excused would not, under the plain meaning, be material to the
50% attendance standard. He agrees that there is no guidance as to what constitutes good
cause regarding absences, and states that it remains up to the Assembly discretion on a case by
case basis.
Page 89 of 89
Clerk's Comments for August 29, 2019
NODIAK ISLAND BOROUGH
Meeting
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