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is repealed and re- enacted as follows: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.
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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
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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
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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,
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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.
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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
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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
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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
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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.