1983-70 Revising Chapter 17.69 of the Borough Code on Board of AdjustmentKODIAK ISLAND BOROUGH
ORDINANCE NO. 83 -70 -0
AN ORDINANCE OF THE KODIAK ISLAND BOROUGH ASSEMBLY REVISING
CHAPTER 17.69 OF BOROUGH CODE ON BOARD OF ADJUSTMENT.
BE IT ORDAINED by the Kodiak Island Borough Assembly:
Section One.
Chapter 17.69 of Borough Code on Board of Adjustment is repealed and
reenacted to read as follows:
Sections:
17.80.010 - Organization.
17.80.020 - Powers of the Board
17.80.030 - Procedure.
17.80.040 - Decision.
17.80.050 - Judicial Review.
17.80.060 - Definitions.
Chapter 17.80
Board of Adjustment
17.80.010 - Organization.
A. The Borough Assembly is the Board of Adjustment outside the
boundaries of the City of Kodiak and for any municipality in the Borough which
does not exercise this power. The Kodiak City Council is the Board of Adjust-
ment within its boundaries.
B. The mayor is the presiding officer of the Board and may adminis-
ter oaths and compel attendance of witnesses by subpoena issued by the clerk
as appropriate. Meetings of the Board shall be held at the call of the mayor
and at such other times as the Board determines. Meetings and hearings of the
Board shall be open to the public. The Board shall keep minutes of its pro-
ceedings showing the vote of each member upon each question, or, if absent or
failing to vote, indicating the fact, and shall keep record of its examinations
and other official actions. The minutes and records shall be immediately filed
in the office of the clerk and are public records.
17.80.020 - Powers of the Board.
The Board of Adjustment shall hear and decide:
A. Appeals from the decisions of the Planning and Zoning Commission
regarding alleged errors in enforcement of zoning ordinances and building
codes;
B. Appeals from the decisions of the Planning and Zoning Commission
on requests for conditional uses;
C. Appeals from the decisions of the Planning and Zoning Commission
on requests for exceptions or variances from the terms of the zoning ordinance
which are not contrary to the public interest, when a literal enforcement
would deprive a property owner of rights commonly enjoyed by other properties
in the same district; provided, that a variance shall not be granted because
of special conditions caused by actions of the person seeking relief or for
reasons of pecuniary hardship or inconvenience. A variance shall not be
granted which will permit a land use in a district in which that use is
prohibited.
n
1\17.80.030 - Procedure.
A. An interested party, including but not limited to a Borough '
to r a
City official, may
file a notice of appeal which must specify the appellants
nt
objections to the act or mailing address or that of the appellant's
decision from which the appeal is taken in detail and
must include A the notice appeal shall be filed with the clerk and a copy shall be
'attorney. A ith the Commission of opp (20) days from the date the Commission's
'
decision with within twenty ( ) 'decision is mailed ileed d to o the a appellant. If an appeal is not taken as provided
Lin this subsection, the right to appeal is forfeited.
n ,I
the clerk shall notify the
e receipt n a n of epdatl, appeal, wh shall be not less
mayor that the appeal has been pblickhearington the eapp notih the date filed. The
mayor w en t (2 0 a days nor r more than forty -five (45) days from !than twenty (20)
!'notice of appeal was filed.
, a haled, within te days 0) days
C, The Commission shall provide the clerk with all pertinen
t
!;records, including any written decision being pP Within ten (10)
after receipt of a copy of the notice of appeal.
, of receiving the pertinent records, the clerk shall deliver the notice the
Board f rdstays appeal and 'the unless the B o a r d orral court i issues
paoPerty
B
� !enforcement order based on a certificate o f
,made by the enforcement officer.
1 I
,the Board shall give
in a ntwepBoer of general
D. Upon receiPt riorhto theihearingin records,
notice by nuwlihation onoe p of the time and place at which it will
circulation within the Borough or City given in the notice of
conduct a public hearing to consider the appeal, shall mail notice to the
appellant or the appellant's attorney at the address g appealed.
a eal, and shall mail notice tonallcpers thewhoih have lrequeot beioticeP of the
PP
hearing or who were entitled shall be permitted
E. The appellant and any other into rested hearing. Briefs
the argument may also the Brie submitte'
Ion present written evidence and o support� 9 ny at
'including ti time hearing. authority The argument
at the time of the hearing. The Board shall base its decision upon the
endpres and authorities as cause altered for . r good e cause n show n:
and presentation s and
;', 1. Borough aTendminuteseper person f for a
of e deci appealed and the evidence and reasons
�' of the decision being PP
I�, relied upon by the Commission;
II 2, Appellant: Ten minutes;
1 3 Any person opposing the appeal: Five minutes each;
4. Any person supporting the appeal: Five minutes each;
5 Appellant: Five minutes for rebuttal; argument
F. The presiding officer may limit the oral testimony
person to reduce cumulative or repetitive statements.
or lureetoas strictly of any p t order of presentation shall not
ha
Ilaffec
\\Ffilute to vtridtly observe the foregoing as the appellant
t the validity of the Board's
be heard.
so long
a reasonable opportunity and the
�I
, G. Hearings of the Board of Adjustment are public,
I�T ie deli berations end decision rations of the Board may besinbcloseduoreexecutivebsessions ,nby a
�iThe delie
',majority vote for cause.
\\117.80.040 Deci�_
reverse, affirm or modify the decision appealed
A. The Board may provided, however, that the concurring or,
f our in pr ole or in o ard; P q�nission. Otherwise, ore
four members of theo600rddetermination of the C
necessary reverse or modify any
�,requirement, dec�si
,Mecision shall be deemed affirmed.
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'Ordinance No. 83 -70 -0
) 1 ! 2 1 7 1 1 n
B. The decision shall be written and shall set forth the Board's
findings of fact and conclusions of law upon which it is based. The 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 Board's decision.
C. The decision shall be filed with the clerk within thirty (30)
days after the completion of the hearing. The Board of Adjustment resolution
!'affirming, reversing or modifying the decision of the Commisson shall be
j mailed or delivered to the appellant and to persons who have requested notice
l of the hearing or who were entitled to notice of the original action being
appealed within ten (10) days after the date the Board's decision is filed
,,with the clerk.
17.80.050 - Judicial Review.
it .
A. An appeal to the Superior Court from a decision of the Board
may be taken in accordance with the provisions of Rule 601 et seq. of the
ijAlaska Rules of Court by any municipal officer, taxpayer, or person, jointly
or severally aggrieved. An appeal to Superior Court shall be heard solely
!lon the record established before the Board and the Commission, unless in its
j discretion th'e Superior Court grants a trial de novo in whole or in part in
lieu of an appeal. The findings of the Board shall not be reversed on appeal
if, in light of the whole record, they are supported by substantial evidence.
I
B. An appeal to the Superior Court is commenced by filing a notice
of appeal with the clerk and the Board of Adjustment within thirty (30) days
• 'from the date that the Board's resolution affirming, reversing or modifying
the decision of the Commission is mailed or delivered pursuant to S 17.80.040
The notice of appeal must specify the parties taking the appeal, designate
the decison or part thereof appealed from, the grounds for the appeal, and the
;court to which the appeal is taken.
C. When the notice of appeal is filed, the Board shall at once
transmit to the Superior Court Clerk copies of all the papers constituting
;the record in the case. Failure to file such notice of appeal in the manner
and time specified shall forfeit any right to appeal. The clerk shall
estimate the cost of preparing the transcript, if any, of the public hearing
and compiling the record on appeal. The person appealing the Board's decision
H must deposit the estimated costs with the clerk in advance. Upon completion
of the record on appeal, the clerk shall refund any excess deposit or charge
the person appealing the Board's decision for costs exceeding the deposit.
j D. An appeal from the Board of Adjustment stays enforcement
,proceedings unless the court issues an enforcement order based on a certificate
of imminent peril to life or property made by the Board. An appeal lies from
the decision of the Superior Court as in other civil cases.
17.80.060 - Definitions.
As used in this Chapter, the following definitions shall apply:
A. "Clerk" refers to the clerk of the municipality whose assembly
or council is acting as the Board of Adjustment, unless express reference is
made to the Clerk of the Superior Court.
B. " Commission" refers to the Kodiak Island Borough Planning and
Zoning Commission.
C. "Mayor" means the elected official of the municipality whose
assembly or council is acting as the Board of Adjustment, or the person
acting in the capacity of mayor in the mayor's absence.
D. "Substantial evidence" means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
Page Three
Ordinance No. 83 -70 -0
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on assage and
Section This ordinance shall be in full force and effect up
adoption by
the Kodiak Island Borough Assembly. 1983.
PASSED AND APPROVED this K AK of November ISLAND BOROUGH
1
I 'I
By
Bor ::S Mayor
ATTEST:
I I
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By:oroug C
\ \SECOND READING DATE AND PUBLIC HEARING
FIRST READING DATE: DATE:
EFFECTIVE DATE:
\PREPARED BY:
RECOMMENDATION: