1990-44 Repealing Chapter 17.68 Appeals, and Chapter 17.80 Board of Adjustment, of the Borough Code and Enacting Chapter 17.80 Appeals to the Assembly, and Chapter 17.90 Appeals to the Commission, of the Borough CodeKODIAK ISLAND BOROUGH
ORDINANCE NO. 90 -44
Introduced by: Mayor Selby
Recommended by:
Planning & Zoning Commission
Date: 12/06/90
Public Hearing: 01/08/91
Postponed: 01/08/91
Postponed: 03/07/91
Adopted : 04/04/91
AN ORDINANCE REPEALING KIBC CHAPTER 17.68, APPEALS,
AND CHAPTER 17.80, BOARD OF ADJUSTMENT, AND ENACTING
CHAPTER 17.80, REVIEW OF PLANNING COMMISSION DECISION,
CHAPTER 17.90, APPEALS TO THE COMMISSION, AND
CHAPTER 17.100, APPEALS TO THE BOARD OF ADJUSTMENT
The Kodiak Island Borough Assembly hereby ordains that:
Section 1: This ordinance is of a general and
permanent nature and shall become a part of the Kodiak Island
Borough Code of ordinances.
Section 2: Chapter 17.68, Appeals, of the Borough
Code is repealed.
Section 3: Chapter 17.80, Board of Adjustment, of the
Borough Code is hereby repealed.
Section 4: Chapter 17.80, Review of Planning
Commission Decision, is enacted as follows:
Sections:
17.80.010 Reconsideration
17.80.020 Commencement of Appeal; Stay
17.80.010 Reconsideration. A. The Commission may
reconsider its decision upon petition of any person entitled to
appeal the decision under Section 17.100.030, filed with the
Community Development Department within ten (10) working days
after the decision.
Ordinance No. 90 -44
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B. The Commission may reconsider its decision only if it
finds:
1. there was a clerical error in the decision;
2. the decision resulted from fraud or mistake; or
3. there is newly discovered evidence or a change in
circumstances which by due diligence could not have been
discovered before the original hearing.
C. The Community Development Department shall mail notice
of the petition for reconsideration to each person who was
entitled to notice of the original Commission proceeding. The
notice shall include the petition for reconsideration, describe
the decision upon which reconsideration is requested and state
the date and time when the Commission will review the petition.
D. The Commission shall review the petition at its next
regular meeting and decide whether to reconsider the matter. The
decision shall be based on the petition and any oral argument of
the petitioner or any other interested party which the Commission
may decide to hear, but no additional evidence shall be taken.
If the petition is granted, then the Commission shall decide the
matter or set the matter on its agenda for rehearing. The
decision of the Commission on reconsideration shall be final,
subject to appeal, and the Commission shall entertain no further
petitions for reconsideration of the decision at issue.
17.80.020 Commencement of Appeal; Stay. A. A decision of
the Commission is final unless an appeal of the decision is made
within ten (10) working days after the decision by the Commission
to the Board of Adjustment.
B. An appeal is commenced by filing with the Borough Clerk
a written notice of appeal, specifically stating the reasons for
the appeal and the relief sought, and payment of the appropriate
fee. Upon commencement of an appeal, the decision appealed from
is stayed until the decision on appeal becomes final.
C. The running of the time for filing an appeal from a
decision of the Commission is terminated by a timely petition for
reconsideration, filed in accordance with Kodiak Island Borough
Ordinance No. 90 -44
Page 2 of 10
Code 17.100.010. The full time for an appeal begins to run again
on the date of the decision of the Commission on reconsideration.
Section 6: Chapter 17.90, Appeals to the Commission, of the
Borough Code is enacted as follows:
Sections:
17.90.010 Persons Who May Appeal.
17.90.020 Commencement of Appeal; Stay.
17.90.030 Appeal Hearing- Notice, Preparation of Record.
17.90.040 Appeal Hearing.
17.90.050 Decision.
17.90.010 Persons Who Mav Appeal. Applicants subject to the
following written decision of the Community Development Director
may appeal the decision to the Planning and Zoning Commission:
A. the denial of zoning compliance; and
B. the issuance of an order or administrative decision
under Section 17.75.010(A) of this Title.
17.90.020 Commencement of Appeal; Stay. A. A decision of
the Community Development Director is final unless appealed to
the Commission within ten (10) working days of receipt of
notification of the decision.
B. An appeal is commenced by filing with the Community
Development Department a written notice of appeal, specifically
stating the reason for the appeal and the relief sought, and
payment of the appropriate fee. Upon commencement of an appeal,
the decision appealed from is stayed until the decision on appeal
becomes final.
17.90.030 Appeal hearing - Notice. preparation of record.
A. Upon timely commencement of an appeal, the Community
Development Department shall schedule the appeal hearing, mail
notice of the appeal, prepare the appeal record and notify the
Commission of the appeal.
B. For appeals from the Community Development Director's
decision, notice shall be given, at a minimum, to all adjoining
property owners. The notice shall include the appellant's notice
Ordinance No. 90 -44
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of appeal, describe the decision appealed from, state the date of
the appeal hearing and time within which written argument
supporting or opposing the appeal may be submitted, and contain
the substance of Subsection E of this Section regarding the
availability of the appeal record.
C. The appeal record shall be completed within ten (10)
working days of receipt of the notice of appeal for appeals from
the Community Development Director's decision. The appeal record
shall include the Community Development Director's written
decision and supporting documentation.
D. Following completion of the record, the Community
Development Department shall, by certified mail, serve a copy of
the appeal record on the applicant. The Community Development
Department shall deliver a copy of the appeal record to the
Borough staff assigned responsibility for the appeal.
E. A copy of the appeal record shall be available for
public inspection at the Community Development Department office.
Any person may obtain a copy of the record upon payment of the
appropriate.
F. On appeal to the Commission, any person who meets the
requirements of Section 17.100.010 and 17.100.030.B may submit to
the Community Development Director written argument supporting or
opposing the appeal. Written argument submitted prior to the
appeal hearing shall become part of the appeal record.
17.90.040 Anneal Hearina. A. On an appeal from a Community
Development Director's decision the Commission shall hold a
public hearing on the appeal at its first regular meeting after
the record is prepared.
B. At the hearing before the Commission, only persons who
have received written notice of the appeal or submitted written
comments on the appeal may present oral argument. Oral argument
shall be subject to the following order and time limitations,
unless the Commission, for good cause shown, permits a change in
the order or an enlargement of time.
1. Borough staff, ten (10) minutes to present the
Ordinance No. 90 -44
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decision below and to set forth the evidence and reasons relied
upon for the decision.
2. Appellant, ten (10) minutes.
3. Private person supporting the appeal, ten (10)
minutes each.
4. Private person opposing the appeal, ten (10)
minutes each.
5. Appellant, for rebuttal, ten (10) minutes.
C. Failure to observe the above procedures in a hearing
shall not affect the validity of the decision so long as the
appellant has had a reasonable opportunity to be heard.
D. The Commission shall decide the appeal upon the appeal
record and the written and oral argument presented on the appeal.
17.90.050 Decision. A. The Commission shall either affirm
or reverse the decision of the Community Development Director in
whole or in part. if the Commission fails to approve the
reversal of the Community Development Director's decision, that
decision is affirmed.
B. Every decision of the Commission to affirm or reverse
an action of the Community Development Director shall be based
upon findings and conclusions adopted by the Commission. 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 Commission's decision affirming or reversing the
decision of the Community Development Director shall be mailed to
the parties to the appeal within five (5) working days after the
appeal decision and approval of findings of fact.
Section 5: Chapter 17.100, Anneals to the Board of
Adiustment of the Borough Code is enacted as follows:
Sections:
17.100.010 Organization.
17.100.020 Powers of the board.
17.100.030 Persons who may appeal.
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Page 5 of 10
17.100.040 New evidence - Changed circumstances.
17.100.050 Appeal hearing - Notice, preparation of record.
17.100.060 Argument on appeal.
17.100.070 Appeal hearing.
17.100.080 Decision.
17.100.090 Hearing examiner.
17.100.100 Judicial review.
17.100.010 Oraanization. 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 Adjustment within
its boundaries. The procedures in this chapter apply to all
Board of Adjustment proceedings including proceedings before a
city council.
17.100.020 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 decision of the planning and zoning
commission on requests for conditional uses;
C. Appeals from the decisions of the planning and zoning
commisison on requests for exceptions or variances from the terms
of the zoning ordinances.
17.100.030 Persons Who May Appeal. A written decision of
the Commission granting or denying approval under the
requirements of this Title may be appealed by:
A. the applicant; or
B. any person who was sent a written notice or submitted
timely written comments or gave oral testimony at the public
hearing before the Commission_.
17.100.040 New Evidence - Changed Circumstances. Appeals
alleging new evidence or changed circumstances may be remanded by
the Board of Adjustment to the Commission where they shall be
treated as petitions for reconsideration.
Ordinance No. 90 -44
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17.100.050 Appeal Hearina - Notice, Preparation of Record.
A. Upon timely commencement of an appeal, the Borough
Clerk shall schedule the appeal hearing, mail notice of the
appeal, request the Community Development Director to prepare the
appeal record, and notify the Commission of the appeal.
B. The Borough Clerk shall mail notice of the appeal to
each person who was entitled to notice of the original Commission
proceeding. The notice shall include the appellant's notice of
appeal, describe the decision appealed from, state the date of
the appeal hearing and time within which written argument
supporting or opposing the appeal may be submitted, and contain
the substance of Subsections C and E of this Section regarding
the obtaining of a verbatim transcript and the availability of
the appeal record.
C. The appeal record shall be completed within ten (10)
working days of filing of appeal. The appeal record shall
include the draft minutes of the proceedings before the
Commission, the Commission's written decision, and any written
documents considered by the Commission.
Any party to an appeal from a Commission decision may cause
the appeal record to include a verbatim transcript of the
proceedings before the Commission by filing a request therefor,
accompanied by a cash deposit in the amount of the estimated cost
of preparing the transcript. Within ten (10) working days of
notice of completion of the transcript the person requesting it
shall pay the actual cost thereof, or the deposit shall be
forfeited to the Borough. A request by the Borough for a
transcript is not subject to the deposit or refund provisions of
this Subsection. The Borough shall bear the cost of preparing
the remainder of the record.
D. Following completion of the record, the Borough Clerk
shall, by certified mail, serve a copy of the appeal record on
the appellant, the applicant, and on any party who paid for the
preparation of a verbatim transcript as part of the record. The
Borough Clerk shall deliver a copy of the appeal record to the
Borough staff assigned responsibility for the appeal.
Ordinance No. 90 -44
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E. A copy of the appeal record shall be available for
public inspection at the Borough Clerk's office. Any person may
obtain a copy of the record upon payment of the appropriate fee.
17.100.060 Araument on Anneal. On appeal to the Board of
Adjustment, any person who meets the requirements of Section
17.80.020 may submit to the Borough Clerk written argument
supporting or opposing the appeal. Written argument submitted
prior to the appeal hearing shall become part of the appeal
record.
17.100.070 Appeal Hearina. A. The Board of Adjustment
shall hold an appeal hearing on the appeal at its first regular
meeting thirty (30) days after the appeal record has been
completed.
B. At the hearing before the Assembly, only persons who
have submitted written argument on the appeal or testified before
the Commission, or submitted written comments to the Commission
may present oral argument. Oral argument shall be subject to the
following order and time limitations, unless the Assembly, for
good cause shown, permits a change in the order or an enlargement
of time.
1. Borough staff, including Commission
representatives, ten (10) minutes to present the decision below
and to set forth the evidence and reasons relied upon for the
decision.
2. Appellant, ten (10) minutes.
3. Private person supporting the appeal, ten (10)
minutes each.
4. Private person opposing the appeal, ten (10)
minutes each.
5. Appellant, for rebuttal, ten (10) minutes.
C. Failure to observe the above procedures in a hearing
shall not affect the validity of the decision so long as the
appellant has had a reasonable opportunity to be heard.
D. The Board of Adjustment shall decide the appeal upon
Ordinance No. 90 -44
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the appeal record, the written and oral argument, and the
testimony and evidence presented on the appeal. The Board of
Adjustment may exercise its independent judgment on the legal and
factual issues raised by the appellant.
17.100.080 Decision. A. The Board of Adjustment shall
either affirm or reverse the decision of the Commission in whole
or in part. If the Board of Adjustment fails to approve the
reversal of the Commission's decision, that decision is affirmed.
The Board of Adjustment may make its own findings on factual
issue, based upon the evidence in the record.
B. Every decision of the Board of Adjustment to affirm or
reverse an action of the Commission shall be based upon findings
and conclusions adopted by the Board of Adjustment. 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 Board of Adjustment's decision affirming or
reversing the decision of the Commission shall be mailed to the
parties to the appeal within ten (10) working days after the
appeal decision and approval of findings of fact.
17.100.090 Hearina Examiner. When the Borough is either
the applicant or appellant, the appeal shall be heard and decided
upon by a hearing examiner. The hearing examiner shall be a
borough resident who is appointed by resolution of the Borough
Assembly. In rendering a decision, the hearing examiner shall
follow the rules and procedures as set forth in the preceding
Sections of this Chapter.
17.100.100 Judicial Review. Any person aggrieved by a final
decision of the Board of Adjustment under this Chapter may appeal
that decision to the Superior Court. An appeal to Superior Court
shall be heard solely on the record before the Board of
Adjustment or its hearing examiner and the Commission. The
appeal procedure shall be governed by the rules set forth in Part
Ordinance No. 90 -44
Page 9 of 10
Six of the Rules of Appellate Procedure of the State of Alaska.
The findings of the Board of Adjustment shall not be reversed, if
in light of the whole record they are supported by substantial
evidence.
AT EST:
PASSED AND APPROVED THIS 4th DAY OF APRIL, 1991.
KODIAK ISLAND BOROUGH
CC
Ordinance Bo. 90 -44
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