Loading...
1980-25 Amending Title 16 of the K.I.B. Code to Provide for Subdivision Appeals to the K.I.B. Assembly, and Amending Related Provisions Pertaining to Enforcement and Subdivision ApprovalKODIAK ISLAND BOROUGH I I ORDINANCE NO. 80- 25 - AN ORDINANCE AMENDING TITLE 16 OF THE KODIAK ISLAND BOROUGH II CODE TO PROVIDE FOR SUBDIVISION APPEALS TO THE KODIAK ISLAND I I BOROUGH ASSEMBLY, AND AMENDING RELATED PROVISIONS PERTAINING 'L'U ENFORCEMENT AND SUBDIVISION APPROVAL. Tne Kodiak Island Borougn Assembly ordains: Section 1. Sections 16.04.035 and 16.04.095 are added to the Kodiak Island borough Code as follows 16.04.035 Commission "Commission" means tne Planning and Zoning Commission of the Kodiak Island Borough. 16.04.095 Manager "Manager" 'means tne Manager of the Kodiak Island Borougn or his designee. Section 2. Cnapter 16.08 of the Kodiak Island Borougn Coue is repealed and re- enacted as follows: Chapter 16.08 Administration, Enforcement, Penalties Sections: 16.08.010 16.08.020 16.08.030 16.08.040 16.08.050 16.08.C60 Administration Administrative Enforcement Action Appeals from Manager Appeals - Hearing and Decision Penalties and Remedies Fees 16.08.010 Administration A. The Commission by resolution may adopt rules consistent with this title to implement, interpret or make specific its provisions. Copies of all rules adopted under tnis subsection shall be available to the public in the ottices of tne Manager and the Borough clerk. B. Tne Commission shall review and act upon applications tor approval of preliminary and final plats, variances, vacations, and appeals from decisions of the Manager, as , ry idec in tnis r.L,e. 1.) 1 1 1 ,, C. The Assemoly shall review and act upon appeals from decisions of the Commission as provided in tnis title. 16.08.020 Administrative Enforcement Action A. In an emergency situation in which the Manager fines that the public nealth, safety or welfare requires immeaiate action, the Manager may order: 1. The discontinuation of unlawful uses of Tana or structures; 2. The removal or abatement of unlawful structures, or any other unlawful additions or alterations thereto; 3. The discontinuation of construction or other preparatory activity leading to an unlawful structure or an unlawful use of land or a structure; 4. when necessary to insure compl.iunce with this title, tne suspension or revocation or ouildiny permits, variances or otner oorough land use entitlements. B. Upon complaint by a citizen, or upon nis own initiative, the Manager may, after investigation, initiate criminal proceedings against any person for tne violation ct tnis title. Except for prosecutions for tailing to comply witn an order issued under A of this section, tne Manager snail give at least ten (10) days written notice of intent to prosecute, and may initiate criminal proceedings only if the violation is not cured, and if the person who is the subject of the notice fails to seek a variance or other appropriate administrative relief, within the notice period. 16.08.030 Appeals from Manager A. The following decisions of the Manager under this title are subject to appeal to the Commission: 1. The denial of a building permit. 2. The issuance of an order under Section 16.08.020A. B. A decision described in A of this section is final unless appealed to the Commission within ten (10) days of the mailing of notice of the decision. An appeal is commences by filing with the Borough Clerk a written notice of l r) 1 .1 { I 3 1 '1 7 appeal, specifically stating the reason for tne appeal ana the relief sought, and the payment of the appeal fee prescribed under this chapter. C. An appeal may be Drought by any person aggrieved by the decision appealed, or any government agency. 16.08.040 Appeals- Hearing and Decision A. Tne Commission snail hold a public hearing on each appeal. At the hearing the Commission snall review the appeal record ana hear evidence and argument presentee by persons interested in the appeal. B. The Commission shall either affirm or reverse the Manager's decision in whole or in part. If the Commission fails to approve the reversal of the Manager's decision, tnat decision is affirmed. C. Every decision of the Commission .)n an appeal shall be based upon finairgs and conclusic:a adopted by the Commission. The findings must be reasonably specific so as to provide tne community, and wnere appropriate, reviewing authorities, a clear ana precise understanding of the reason for the decision. D. The Commission's decision on an appeal snail oe mailed to the parties to the appeal within ten (10) days after the decision. 16.08.050 Penalties and Remedies A. The owner or agent of the owner of land located witnin a subdivision who offers to sell, transfers, sells or enters into a contract to sell land in a subdivision before a plat of the subdivision has been prepares, approved ana recorded in accordance with this title, is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $500 for each lot or parcel offered for sale, transfered, sold or included in a contract to be sold. B. No person may record a plat or seek to have a plat recorded unless it has been approved in accordance with this title. A person who knowingly violates this subsection is ; ii n n i n -� n punishable upon conviction by a fine of not more than $500. C. The Borough or any aggrieved person may bring a civil action to enjoin any violation of this title, any transfer or sale of an unlawfully subdivided parcel, the violation of any order issued under Section 16.08.020A, and the violation of any term or condition of any plat or other entitlement approved under this title, and to obtain damages for any injury the plaintiff suffered as a result of the violation. An action for injunction under this section may be brought notwithstanding the availability of any other remedy. Upon application for injunctive relief and a finding of an existing or threatened violation, the Superior Court shall enjoin the violation. 16.08.060 Fees The Assembly shall establish a schedule of fees for plat, variance and vacation applications, and for appeals under this title. The schedule of fees shall be posted in the Borough 11 offices and may be altered or amended only by the Assembly. Section 3. Kodiak Island Borough Code Section 16.12.030E is repealed and re- enacted as follows: E. The Commission shall act upon an application for final plat approval after reviewing the plat and discussing the application with the subdivider or his representative. Section 4. Kodiak Island Borough Code Section 16.12.030F, G, and H are repealed. Sect i_ on 5• Kodiak Island Borough Code Section 16.12.040 is repealed and re- enacted as follows: 16.12.040 Final Plat Im rovements, Dedications, Recording A. When the approval of a final plat is no longer subject to appeal, the Manager shall sign the plat, signifying that approval. Offers to dedicate to the public rights -of -way, it i �i 1 1 ; li II 4"ri fl 1 n 1 9 ii I1! 1 , I I. C. roadways, easements or otner puolic areas on a tine. are accepted only lat Y by the Manager's signature on the plat. An area offered for ceL2ication becomes public property i:r:1i when so accepted. Unless otherwise provided by accepting a ueoication the Eorougn assures no oblicdtioh establish, operate or maintain any public serve;.;:, improvement or fac1.1 y in tne ueaicatec area, B. No final plat shall oe recorded until: 1. The suOdivlaer completes all the improvements r c,�ersc in the suoaivlsion and obtains their acceptance in accordance with Section 16.24.030. 2. The subdivider guarantees the completion of tne improvements by furnishing for the sole oenefit or tne Borough a surety bona, cash ir• escrow, letter of credit, or other security acc;: :able to t:,e burouc,;, ::curing payment in a principal sum riot less tear tne estimated cost of the iTprovemer.t3 as Bcrough engineer. Tne _uarant_ J7e In a form approves by tne riorouga attorre;. Upon tne 3ubdivioer's compliance wit:: � rr ti;is se -_Bur; a:. the acceptance of the dedications Ofiere on the aprro,,ec cinal plat, the Borough shall submit the to the District Recorder in accordance with AS 40 Sect ion 6. Kodiak Island Borough Code 16 .12.050 e5 repealed. on 7 Section Kodiak c ti Island Borough Code 1 6.24.010 is repealed and re- enacted as follows: 16.210 prere uisites to Im rovement Construction No person may begin construction of any improvement required under this chapter unless plans for such construction have been prepares by a professional engineer registered in tne State of Alaska, and have been approved by tne borough engineer for subdivisions located outside cities, and by tne City engineer for subdivisions located within a city. f ? 1 Section 8. The first three paragraphs of Kodiak Island Borough Code 16.24.020 are repealed ana repiacea as follows: The subdivider shall construct and install in tne by this section within subdivision the improvements required two years of final plat approval: Section 9. Kodiak Island Borough Code 16.24.030 is enacted as toliows: 16.24.030 Acceptance of Improvements No improvement shall be operated or maintained by the public, and no security for the completion of an improvement shall be released, until the improvement nas been accepted by the Borougr, engineer, tor subdivisions located outside cities, or by the City engineer, for subdivisions locates within a city. An improvement snail be accept it it conforms co the plans tnerefor approved under Section 16.24.010. Section 10. Kodiak Island borough Code 16.28.010 is repealed and re- enacted as follows: 16.28.010 Variances Whenever tne tract to be subdivided is of such unusual size or shape or is surrounded by such development or unusual conditions that the strict application of tLe requirements contained in these regulations would result in real difficulties or substantial hardship or injustice, the Commission may vary such requirements so that the subdivider may develop his property in a reasonable manner, but so that at the same time the public welfare and interests of the Borough and surrounding areas are protected ana tne general intent ana spirit of these regulations preserved. Section 11. Kodiak Island Borough Code Chapter 16.32 is repealed and re- enacted as follows: 11 ( r) 71 Sections: 16.32.010 16.32.020 16.32.030 16.32.040 16.32.050 16.32.060 16.32.070 1 6.32.080 16.32.090 16.32.100 16.32.110 CHAPTER 16.32 APPEALS Reconsideration Review of Vacation Approval Persons Who May Appeal Commencement of Appeal; Stay New Evidence- Changed Circumstances Appeal Hearing - Notice, Preparation of Record Argument on Appeal Appeal Hearing Scope of Appellate Review Decision Judicial Review 16.32.010 Reconsideration A. The Commission may reconsider its decision upon petition of any person entitled to appeal tne decision under Section 16.32.03C, filed within ten (10) cays after the decision, or the veto of a vacation where reconsideration is aliowec under Section 16,32.020B. B. The Commission may reconsider its decision only if it tinas: 1. There was a clerical error in tne decision; 2. The decision resulted from frauo or mistake; 3. There is newly discovered evidence or a onar.ye in circumstances which by aue ull:gence couia not nave been discovered before the original nearing. C. The Commission shall review the petition at its next regular meeting and decide whether to reconsider the matter. The decision shall be Cased un the petition and any oral argument of the petitioner which the Commission may decide to hear, but no additional evidence shall be taken. If the petition is granted, the Commission then shall decide the matter or set tne matter on its agenaa for rehearing. The decision of the Commission on reconsideration shall be final, and the Commission snail entertain no further petitions for reconsideration of the decision at issue, except as provided in Section 16.32.02011. 16.32.020 Review of Vacation Approval A. A decision to grant a vacation is not effective unless approved by the City Council if the vacated area is within the vacation. a city or by the Assembly if the vacated area is within tn� Borough area outsiue cities. The Council. or Assemeiy shall have thirty (30) days from receipt of tne cecision to veto If the vacation is not vetoed within the thirty (30) day period, the consent of tne Council or Assembly shall be considered to nave been given to the vacation. B. A veto or approval of a vacation under A of this section is a final legislative decision and is not subject to administrative appeal. However, where a vetoed vacation had received administrative approval in conjunction with the preliminary plat for a subdivision, the preliminary plat approval without the vacation is subject to a petition for reconsideration under Section, 16.32.010. 16.32.030 Persons Who May Appeal A decision of tne Commission yra::ing or denying approval of a plat, variance, or appeal from a cecision of the Manager under Section 16.08.020A may be appealed oy: A. The applicant before tne Commission. B. Any person adversely affected by tne decision who appeared and made an oral or written presentation before the Commission. C. Any governmental agency. 16.32.040 Commencement of Appeal; Stay' A. A decision of the Commission is final unless an appeal of the decision is commenced within 10 days after the Commission's final action, including reconsideration, on the application at issue. B. An appeal is commenced by tiling with the Borough Clerk a written notice of appeal, specifically stating the reason for the appeal and the relief sought, and payment of tne appropriate fee. C. Except for decisions on an appeal from a decision of the Manager under Section 16.08.020A, upon commencement of an r1 If appeal the decision appealed from is stayed until tne decision on appeal becomes final. 16.32.050 New Evidence- Changed Circumstances Appeals alleging new evidence or charged circumstances shall not be heard by the Assembly but snail be remanded forthwith by the Borough Clerk to the Commission where they shall be treated as petitions for reconsideration. 16.•32.060 Appeal Hearing- Notice, Preparation of Record A. Upon timely commencement of an appeal tne Borougn Clerk shall schedule the appeal hearing, mail notice of tne appeal, and prepare the appeal record. B. The Borough Clerk shall mail notice of the appeal to each person who would have been entitled to notice ot tne original proceeding. The notice shall include the appellant's notice of appeal, describe the decision appealed from, state tne gate of the appeal hearing and time witnin whicn written argument supporting or opposing the appeal may be submitted, and contain tne substance of C and E ot this section regarding tne obtaining of a verbatim transcript and the availability Qt the appeal recora. C. Tne appeal record shall be completes witnin twenty (20) days of receipt of the notice of appeal. It shall include the minutes of the proceedings before the Commission, ana the Commission's written decision. Any party to the appeal may cause the appeal recora to include a verbatim transcript of the proceedings before the Commission by filing a request therefor, accompanied by a casn deposit in the amount of the estimated cost of preparing the transcript, within ten (10) days of the date ot mailing notice of the appeal. Within ten (10) days of notice of completion of the transcript the person requesting it snail pay the actual cost thereof, or the deposit shall be forfeited to the Borougn. A request by the Borougn for a transcript is not subject to the deposit or refund n 1 n 1 1 1 3. Private person opGOSing appeal, if tnere is no more tnan one such private party to oe .e.:.ru -ten (10) minutes. 4. Private person opposing apeea., it t::ere is more than one such private party to oe heart -tive (5) minutes L .:Tent each; provided that the Mayor may imit argument such persons to t educe cumulative or repetitive argument. 5. Appellant, tor rebuttal - rive (5) minutes. Failure to observe tne above procedures in a nearing snail not affect the validity of the Assemoiy's decision so long as tne appellant c.as nad a reasonable opportunity to be hears. C. The Assembly snail not taKe addit :onai testimony or other evidence, but ::hail decide the d'._al upon the appeal record and the written and oral Unenl: presented On the appeal. /6.32.090 cope ct Appellate heview A. The Assef,oly may exercise its Inc enoent :u yment issues ralc:_c cv tne ap:e11 t. .?gal issues are tn'ae matters to & = _ •-late to cne inter.,reta=i °n Or construction of ordlnai " .:es or ctnat i.rovision or ,taw. S. The Assembly shall refer to the - judgment of the Commissicl: regarding clsputed issues of tact. cincinys of tact adopted expressly or by necessary impilcatior by tr_e Commission snail be considered as true it, cased upn a review of tne whole record, they are supported by substantial evidence. Substantial evidence means such relevant evidence as a reasonable mind might accept as .adequate to support a conclusion. It the record as a wncie affords a substantial oasis of fact from which the tact in issue may be reasonably inferred, the fact is surperted oy substantial evidence. � 16.32.100 Decision A. The Assembly shall either affirm or reverse tne recision or the Commission in whole or in part. If the Assembly tails 1 0 `l .� I 1 1 to approve the reversal of the Commission's decision, that decision is affirmed. Where the Assembly decides that a finding of fact by the Commission is not supported by substantial evidence, it shall make its own finding on the factual issue, based upon the evidence in the record. B. Every decision of the Assembly to affirm or reverse an action of the Commission shall be based upon findings and conclusions adopted by the Assembly. Such findings must be reasonably specific so as to provide the community, and where appropriate, reviewing authorities, a clear and precise understanding of the reason for the decision. C. The Assembly resolution affirming or reversing the decision of the Commission shall be mailed to the parties to the appeal within ten (10) days after the appeal decision. 16.32.110 Judicial Review In accordance with Appellate Rule 45 of the Alaska Rules of Court, any person aggrieved by .a final _iecision of the Assembly under this chapter may appeal that decision to the Superior Court. An appeal to Superior Court shall to heard solely on the record before the Assembly and the Commission. The findings of the Assembly shall not be reversed, if in light of the whole record they are supported by substantial evidence. Section 12. This ordinance shall be effective upon passage and approval, and shall apply to all platting applications, appeals and enforcement actions presently filed and pending, as well as to all new platting applications, appeals and enforcement actions. ATTEST: PASSED AND APPROVED this 2nd day of July MAMAY t 1 , 1980.