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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 Section 2: Chapter 17.68, Appeals, of the Borough Code is repealed. Section 3: Chapter 17.80, Board of Adjustment, of the Borough Code is hereby repealed.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 Page 1 of 10 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 Page 3 of 10 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 Page 4 of 10 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. Ordinance No. 90 -44 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 Page 6 of 10 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 Page 7 of 10 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 Page 8 of 10 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 Page 10 of 10