2008-03-13 Work SessionKodiak Island Borough
Assembly Work Session
Thursday, March 13, 2008, 7:30 p.m., Borough Conference Room
Work Sessions are informal meetings of the Assembly where Assembly members review the upcoming regular meeting agenda
packet and seek or receive information from staff. Although additional items not listed on the work session agenda are discussed
when introduced by the Mayor, Assembly, or staff, no formal action is taken at work sessions and items that require formal
Assembly action are placed on regular Assembly meeting agenda. Citizen's comments at work sessions are NOT considered part of
the official record. Citizen's comments intended for the "official record" should be made at a regular Assembly meeting.
CITIZENS' COMMENTS (Limited to Three Minutes per Speaker)
ITEMS FOR DISCUSSION
1. Bed and Breakfast Association Request for Bed Tax Monies -n- 1 4. " 4i
2. Chiniak Garbage Issues
PACKET REVIEW (Items with * are considered under consent agendas.)
PUBLIC HEARING
Ordinance No. FY2008 -15 Amending Kodiak Island Borough Code of Ordinances Sections
2.39.070 Declaring and Filling Vacancies in Title 2; Section 4.15.040 Vacancies in Title 4; and
Section 2.43.02 Appointment, Terms, and Procedures in Title 2.
Ordinance No. FY2008 -16 Amending Kodiak Island Borough Code of Ordinances Title 5
Business Licenses and Regulations Chapter 5.01 Liquor Licenses Section 5.01.030 New
License and Transfer Procedure.
Ordinance No. FY2008 -17 Amending Title 2 Administration and Personnel Chapter 2.15
Borough Mayor Section 2.15.020 Qualification and Election of Borough Mayor and Chapter 2.16
Borough Assembly Section 2.16.020 Term, Section 2.16.050 Oath Deputy Presiding Office and
Creating Section 2.16.030 Assembly Oath of Office.
Ordinance No. FY2008 -01 C Amending Ordinance No. FY2008 -01 Fiscal Year 2008 Budget by
Moving Money Between Funds, Amending Budgets to Provide for Additional Expenditures and
Budgeting for Several Grants.
CONTRACTS
Contract No. FY2008 -28 Authorizing the Manager to Enter Into a Long Term Lease With The
State of Alaska Department of Military Affairs for Pool Purposes.
Contract No. FY2007 -11A Amending Contract No. FY2007 -11 Architectural and Engineering
Services for KMS Seismic Upgrade, KHS Library Seismic Upgrade, KHS Gym Seismic
Upgrade, KHS /KMS Complex IRMA Roof Upgrade, KHS Learning Center, KHS Exterior
Insulation and Window Replacement, KHS Vocational Center Renovation and KHS Pool
Reclamation.
RESOLUTIONS
Resolution No. FY2008 -30 Requesting North Pacific Fishery Management Council
Consideration of Kodiak Community Concerns in the Pending Analysis of the BSAI Crab
Rationalization Program.
*Resolution No. FY2008 -31 Supporting House Bill No. 373, an Act Extending Specified Public
School Bond Debt Reimbursement and Providing for an Effective Date.
Ordinances for Introduction
ORDINANCES FOR INTRODUCTION
*Ordinance No. FY2008 -18 Rezoning Three (3) Parcels of Land on Spruce Island Totaling
Approximately 157 Acres From C- Conservation To LI -Light Industrial (P &Z Case 08 -017.)
Branson— March 23 -29 NCoA, DC
Friend - 03/12 -04/02 Oswalt — 01/05 -03/27 Personal
Page 1 of 1
Kodiak Island Borough
Assembly Work Session
Thursday, March 13, 2008, 7:30 p.m., Borough Conference Room
*Ordinance No. FY2008 -19 Rezoning Two Lots in Chiniak Totaling Thirteen (13) Acres From
C- Conservation To RNC -Rural Neighborhood Commercial.
OTHER ITEMS
Assembly Appointment to the Mission Lake Tide "Tidegate" Service Area Board.
Resignation of Assembly Member Jeffrey and Appointment of a New Assembly Representative
on the Kodiak College Council.
Assembly Appointment to the Citizens Board of Equalization.
MANAGER'S COMMENTS
CLERK'S COMMENTS
MAYOR'S COMMENTS
ASSEMBLY MEMBERS COMMENTS
Branson— March 23 -29 NCoA, DC
Friend - 03/12 -04/02 Oswalt — 01/05-03/27 Personal
Page 2 of 1
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TO:
THROUGH:
FROM:
SUBJECT:
DATE:
Kodiak Island Borough
MEMORANDUM
Honorable Mayor and Assembly Members
of the Kodiak Island Borough
Rick Gifford, Borough Manager
Karleton Short, Finance Director 10
Chiniak Garbage Collection and Billing
March 10, 2008
There has been some controversy in the billing for collection and disposal of solid waste in
Chiniak. We have received complaints from some Chiniak residents about back billing of
accounts when they have been receiving the service but not paying for it, paying for solid waste
collection and disposal for second homes, not allowing residences to be in a vacant status for
periods of time being back billed, and equality of billing, both with other Chiniak residents and
with Pasagshak residents.
The Borough started charging residents of the Chiniak area for solid waste collection and
disposal starting June 1, 1987. At this time the Borough made an effort to find all of the
residences that needed to pay for the collection and disposal of their solid waste.
After this initial effort the Finance Department relied on information received from the City
Building Inspection Dept to set up new accounts. Per Borough Code a building permit has to be
issued before work can begin on a new house. When the work has been completed, a Certificate
of Occupancy (Borough Code Section 15.04.130) is issued. When this Certificate of Occupancy
is issued the Finance Department sets up a garbage collection account.
Because people are not getting building permits or, more importantly, a Certificate of
Occupancy, the Finance Department does not always have the information to set up a garbage
account in a timely manner.
In addition to the permitting process the Finance Department regularly compares the billing
records with assessing records and plat maps. We usually check one area a year such as Chiniak,
Womens Bay, Monashka Bay, etc. By utilizing the new GIS software to create tax account maps
showing the parcels with improvements, residences that should be paying for garbage can be
located more quickly.
There are 61 parcels of land in the Chiniak subdivision that have residences on them. Sixteen
accounts have been back billed. Seven of these accounts are paying on their back bill or have
paid off the back billed amount. Nine accounts (15 %) have chosen not to pay on their back bill.
Building permits were issued for 6 of these back billed residences; only two of these residences
have Certificates of Occupancy.
Kodiak Island Bed & Breakfast Association
P.O Box 8785
Kodiak, Alaska 99615
907- 487 -4315
2 -19 -2008
Thank you for your consideration.
Sincerely, The Kodiak Island Bed and Bre
Robin Haight- President
John Fiorentino- Vice President
Darlene Turner- Secretary
Jim Vanatta- Treasurer
t Associatio jloard
EMU
FEB 222008
K1B MANAGER
Dear, Mayor Jerome Selby and Assembly members
The Kodiak Island Bed and Breakfast Association would like to be put on the Agenda for
bed tax revenue, to discuss receiving funding for the bed tax we collect for promoting
Kodiak tourism. We are asking for 10,000 or what monies that may be available, to use
for marketing, brochures and trade shows.
At this time we have eleven residences in the Chiniak area in vacant status.
The monthly fee for solid waste collection and disposal is $31.00. If an account is in vacant
status the bill is $10 per month. The Borough sends a bill out to all accounts every 30 days.
When an account becomes delinquent we send a series of three collection letters. When an
account balance reaches approximately $200 we place a lien on the property. As you can see if
an account is active a lien isn't placed for seven months, when an account is in vacant status a
lien isn't placed for 20 months.
Some people have claimed that they did not know about the fee for garbage collection and
therefore should not pay for previous services rendered. We did receive a legal opinion from the
Borough attorney which addresses this situation. It states in part:
"To the extent that an argument may be made that one or more persons may not
have known that they had a duty to apply for services, it would be wrong. In
Alaska, everyone is presumed to know the law. This means that the individuals
who have avoided (or escaped) getting garbage bills because they failed to apply
for services are most responsible for the situation they now find themselves in -
getting a large bill for the past services."
The same people have also questioned the Borough's authority to "back bill" accounts for
three years. This is covered in State Statue, and also addressed in the legal opinion. The
legal opinion states, in part:
"An action brought in the name of or for the benefit of ... any political
subdivision ... may be commenced only within six years of the date of
accrual on the cause of action."
The Borough could charge users for up to six years of past solid waste and collection service; we
have chosen to only go back three years. I have attached a copy of the full legal opinion.
The Borough does not provide for an exemption or partial billing for a second home. This has
been a policy decision and is reflected in both the Borough Code and the fee schedule
It has been suggested that we are not billing all Chiniak residents for garbage services. This may
be true but I am not aware of any that we aren't. We look at building permits, Certificates of
Occupancy, Assessing records and GIS maps. I would welcome information on any residences
that aren't paying for solid waste collection and disposal.
There has also been some concern about some Chiniak residents being back billed while others
are not. There was only one account on which I told the Accountant not to back bill. This was
for parcel R5515020016, owned by John and Maureen Butler. We found this parcel was not
being billed at the time of the controversy over the billing for solid waste and collection in the
Pasagshak area. At that time we halted our efforts in finding residencies that were not being
billed. Because of this delay in setting up the account and our inaction for a period of time we
did not back bill the Butler account. This was a mistake on our part.
2
When a home is vacant for 30 or more days a resident can apply for a reduced rate. Per Borough
Code, section 8.20.055, the Finance Department must be notified before any vacancy and must
then recertify this vacancy every 180 days. If the premises are found to be occupied and the
Finance Director is not notified, the account will be back - billed as if no vacancy occurred. If
this process is not followed it is very difficult to monitor compliance.
There has been some concern that the Borough has not billed residents of Pasagshak for solid
waste collection and disposal.
Chiniak and Pasagshak have always been different communities. Chiniak has been a residential
community with year round residents and support services (such as a school, post office, etc.)
while Pasagshak has been more of a vacation destination.
The garbage service to Pasagshak has always been different from the service to Chiniak.
Dumpsters were generally only in the Pasagshak area in the summer and paid for by Alaska State
Parks.
The community of Pasagshak has changed and our service to Pasagshak is changing. We have
moved a dumpster there for year round service and are beginning to bill residents for the service.
The Finance Department makes every effort to treat all persons the same. We want everyone to
pay for their share of services. If we do not charge one person it means other people have to pay
for them. That is something we want to avoid.
I hope that this answers your questions about where we are going with our solid waste billing
and collection efforts. Please let me know if you have any further questions.
3
ALAN L. SCHMITT
ATTORNEY AT LAW
ADMITTED TO ALASKA BAR
HAND DELIVERED
Karleton Short, Finance Director
Kodiak Island Borough
710 Mill Bay Road
Kodiak, Alaska 99615
Re: Escaped Garbage Bills
Our File No. 4702 -1018
Dear Mr. Short:
JAMIN SCHMITT ST. JOHN
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
323 CAROLYN STREET
KODIAK, ALASKA 99615
March 4, 2008
1. should have applied for garbage service under Kodiak Island Borough
Code ( "KIBC ") 8.20.065;
2. did not so apply;
3. have been identified by borough staff; and
4. have been sent bills by the borough.
TELEPHONE: 907.486.6024
FACSIMILE: 907.486.61 12
EMAIL: alan @jesmkod.com
As requested I have reviewed the legal issues associated with the borough's
recent efforts regarding "escaped garbage bills." This terms refers to persons who were
residing in or occupying a building and who:
Presently, the escaped garbage bills affect a small number of individuals in the
Chiniak area. These individuals have now been put into the borough's billing system.
However, an issue has arisen relative to how far back in time the borough may go in
charging for the services which they avoiding by not making the required application.
I will address the specific issue in a moment but first want to review the
borough's general legal authority in this context.
The primary state authority is AS 29.35.050, the relevant portion of which reads:
(a) Notwithstanding AS 29.35.200 - 29.35.220, a municipality may by
ordinance
(1) provide for the establishment, maintenance, and operation of a
system of garbage and solid waste collection and disposal for the entire
municipality, or for districts or portions of it;
(2) require all persons in the municipality or district to use the
system and to dispose of their garbage and solid waste as provided in the
ordinance;
Karleton Short letter
March 4, 2008
Page 2 of 5
(3) award contracts for collection and disposal, or provide for the
collection and disposal of garbage and solid waste by municipal officials
and employees;
(4) pay for garbage and solid waste collection and disposal from
available money;
(5) require property owners or occupants of premises to use the
garbage and solid waste collection and disposal system provided by the
municipality;
(6) fix charges against the property owners or occupants of
premises for the collection and disposal; and
(7) provide penalties for violations of the ordinances.
This power, among others, is to be liberally construed.' It has been noted that
this phrase was included in our constitution "to overrule a common law rule of
interpretation which required a narrow reading of local government powers.s Indeed,
one of the delegates drafting our constitution stated that it was intended to promote "the
maximum amount of flexibility" relative to interpreting local government powers. This is
significant as it shows that the matter is controlled primarily by the borough code, not
any other laws on billing procedures.
By means of a series of ordinances in 1986, the Kodiak Island Borough
Assembly adopted the powers of solid waste collection and disposal within the City of
Kodiak and in all areas outside of the other cities within the borough. This includes the
Chiniak area. These powers have been codified in Kodiak Island Borough Code
( "KIBC ") 8.20.
and
The relevant parts of KIBC 8.20.030 state:
Every person residing in or occupying a building within the corporate limits
of the city of Kodiak or in the area outside cities within the borough in
accord with AS 29.35.210(a)(4) shall provide for solid waste collection and
use the system of solid waste disposal provided by the borough.
1 Alaska Constitution, Article X, Section 1 and AS 29.35.400.
Liberati v. Bristol Bay Borough, 584 P.2d 1115, 1120 (Alaska 1978).
3 Id. at note 19.
4 Ordinances 86 -34, 86 -38 and 86 -39. Also, there was an advisory vote by those residing outside
of the cities - well over a majority of the voters supported the borough assuming the powers.
5 Ordinance 86 -39.
Karleton Short letter
March 4, 2008
Page 3 of 5
No person may transport rubbish or trash to any location off -site for the
purpose of disposal (e.g. burning, landfilling. etc.) except as provided in
this section. (Emphasis added)
Then, KIBC 8.20.065 sets out the procedures for service requests, billing and
collection. Subsection A anticipates that citizens will be responsible and affirmatively
apply for service. It reads:
Each person making an initial application for collection service shall
complete, sign, and submit an application to the borough on a form
prescribed by the director of finance, specifying the premises to be
served, the type of service, the address to which billing shall be sent, and
such other information as may be determined tom necessary by the
director of finance.'
To the extent that an argument may be made that one or more persons may not
have known that they had a duty to apply for services, it would be wrong. In Alaska,
everyone is presumed to know the law.' This means that the individuals who have
avoided (or escaped) getting garbage bills because they failed to apply for services are
most responsible for the situation they now find themselves in - getting a large bill for
the past services.
As to the specific issue - how far back in time the borough may go in charging for
escaped garbage bills - there are two steps to the analysis. First, as noted above, the
borough code provides the primary law on this issue and that law is to be liberally
construed. The code seems clear that the assembly intended for everyone to pay for
the services when they became available. The code puts no limit on how far back in
time one can be billed. Arguably, KIBC 8.20.065 B and C stand for the proposition that
bills are just done on a monthly basis and that this might limit how far back in time bills
can be sent. This argument overlooks, however, the requirement of KIBC 8.20.065 A
that the person is to first apply for services to trigger the monthly bills. Hence, if people
never applied, they cannot use KIBC 8.20.065 B and C as a shield.
The collection mechanism under the code, when bills go unpaid, is the recording
6 The types of collection service are described in KIBC 8.20.041. I understand that in Chiniak, the
borough provided residential dumpster service as defined in KIBC 8.20.041 A.3.
' Ferrell v. Baxter, 484 P.2d 250, 265 (Alaska 1971) and Hutton v. Realty Executives, Inc., 14
P.3d 977, 980 (Alaska 2000).
Karleton Short letter
March 4, 2008
Page 4 of 5
of a lien on the subject property. This then brings us to the second step in the
analysis. In many ways, recording a lien is a passive means of prompting payment of
the underlying debt. That is, it does not require any further affirmative action by the
borough. If the owner of the subject property tries to sell it or use the property as
security for a loan, a prudent buyer or lender will require that the lien be satisfied. This
is a matter of borough law and there is no limit on how far back the bills can go.
However, if the borough tried to act affirmatively to collect the debt, it will need to
do so via the state court system. In this context, Alaska's Code of Civil Procedure, AS
09, comes into play. A lawsuit to collect a debt is a "civil action" under Alaska law.
According to AS 09.10.010, a civil action is to be commenced within the time limits set
out in AS 09.10. Three specific sections of AS 09.10 are most relevant.
The first two provide for a three year statute of limitation. AS 09.10.053 applies
to an action based on an express liability. Such actions must be brought within three
years, unless otherwise provided. This is the general contract statute of limitations. AS
09.10.090 applies when one files a lawsuit to prosecute a penalty. However, since the
borough is apparently not trying to enforce any penalty, this statute does not apply.
The third statute is AS 09.10.120. In relevant part, it reads:
An action brought in the name of or for the benefit of ... any political
subdivision ... may be commenced only within six years of the date of
accrual on the cause of action.
In a case involving a municipality's use of the court to collect escaped property
taxes, our supreme court held that AS 09.10.120 applies. This provides authority for
the borough to go back up to six years in escaped garbage bills. Further,
the court held in that case that the borough could also collect the property tax related
penalties and interest for six years. The court stated: "thus we hold that the longer
statute of limitations applies to assessments of interest and penalties as well as to the
underlying tax obligations.s
In conclusion, it is my opinion that the borough is authorized to go back six years
relative to escaped garbage bills. Please let me know if you have additional questions.
8 KIBC 8.20.065 E.
See, AS 09.70.010 and Rule 2, Alaska Rules of Civil Procedure
10 Alascom, Inc. v. North Slope Borough, Board of Equalization, 659 P.2d 1175, 1179 (Alaska
1983).
11 Id. at note 13.
Karleton Short letter
March 4, 2008
Page 5 of 5
cc: Rick Gifford, Borough Manager
S: \WP\CLIENTS\4702 \1018 escaped garbage bills \1018 letter k short 1.wpd
Sincerely yours,
JAMIN SCHMITT ST. JOHN
Alan L. Sc mitt
March 6, 2008
Scott Bonney
PO Box 5524
Chiniak, AK 99615
STATE OF ALASKA
DEPARTMENT OF
COMMERCE
COMMUNITY AND
ECONOMIC DEVELOPMENT
Division of Community and Regional Affairs
RE: Solid Waste Disposal Issues
Dear Mr. Bonney,
550 W. 7th Avenue, Suite 1770, Anchorage, Alaska 99501 -3510
Telephone: (907) 269 -4580 Fax: (907) 269 -4563 Text Telephone: (907) 465 -5437
Email: questions@commerce.state.ak.us Website: http: / /www.commerce.state.ak.us /dca/
Sarah Palk Gown r
Enil Na!ti, Commissioner
Tara Jaiie, Director
Recently you contacted Local Government Specialist Tammy Helms with
questions concerning the Kodiak Island Borough's decision to back bill for solid
waste services provided. To the best of her knowledge, she responded in
writing on February 18, 2008. As her supervisor, I need to clarify and correct
some of that information and provide additional recommendations.
The issue of Pasagshak residents being billed is not relevant. The Kodiak Island
Borough Code cited by Ms. Helms states that every person residing within the
borough shall subscribe to use of the borough solid waste collection system.
The manner of use, individual billing or providing a multi -use dumpster, is also
the borough's authority.
The issue of the borough back billing some residents and not others is simply a
matter of residents being billed as they are identified. The responsibility of
residents within the borough is to apply for sanitation services. When people
fail to do that or fail to apply for building permits, the borough bills for services
as they are able to identify residents using the provided service. If you know of
residents that are using the service and not receiving a bill, you may exercise
your civic duty to call the borough and give them a name and location in order
for them to be billed.
Another issue was questioning the authority of the borough to back bill for
three years. Ms. Helms was correct in saying there is no written authority
presently in the borough code to back bill, however, the authority is in the
Alaska Constitution and the Alaska Statutes. The Alaska Constitution
promotes the maximum amount of flexibility in local government powers. It
does not require, nor is it reasonable to assume, that the borough adopt an
ordinance for every procedure of local governance.
Scott Bonney
March 6, 2008
Page 2
The final issue addressed in Ms. Helms' letter was the authority of the borough
to back bill up to six years. Borough code is very clear that the assembly
intended that all residents who receive a service pay for that service. If people
failed to apply for the service, as required, and are now identified as having
been in residence and receiving the borough service, they may be back billed
up to and including a six year maximum per Alaska State Statutes. The Kodiak
Island Borough Assembly has chosen to back bill for three years only.
In the opening paragraph, Ms. Helms made the most valuable and important
point. The Kodiak Island Borough Assembly has the authority to adopt laws
and procedures that affect your life. Assembly members receive that authority
from you as a voter. Ms. Helms and I encourage you to attend borough
assembly meetings to voice opinions and provide guidance to the assembly. As
a voter, it is ultimately your responsibility to become involved in decisions such
as the direction to back bill which was done at a meeting open to the public.
If I can be of further assistance or add additional information, please call me at
907- 269 -4556 or email me at Elizabeth.manfred (4alaska.gov.
Sincerely,
Elizabeth Manfred, LGS V
Regional Office Manager
Cc: Tammy Helms, LGS III
Karleton Short, Kodiak Island Borough
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KODIAK ISLAND BOROUGH
ASSEMBLY WORK SESSION
Work Session of: C,yCk 1 10p0
Please arint your name
PO Box 1098
Kodiak, AK 99615
March 11, 2008
Mayor Jerome Selby
Kodiak Island Borough
710 Mill Bay Road
Kodiak, AK 99615
Dear Mayor Selby and Borough Assembly:
On February 13, 2008, the Kodiak Island Sportsman's Association suffered a catastrophic
failure to our indoor range ventilation system. The accumulation of snow on the roof
combined with rain and melt -off caused a significant amount of weight to fall on the
external shafts. As a result, 33 feet of ventilation shaft was crushed. Due to the lack of
ventilation, the Chief Range Officer closed the indoor range to all programs and persons.
The Kodiak Island Sportsman's Association relies heavily on the operation of the indoor
range during the winter months to meet our annual operating costs. In addition, programs
enjoyed by many in the community have been placed on hold and some special events
that were planned may have to be cancelled to help offset the cost of repairs.
The repairs to the ventilation system are currently 90% complete and we expect it to be
completed by this weekend. The total amount of the repair costs are just over $5,100.00,
which is almost 50% of our remaining operating funds. We are hoping the Kodiak Island
Borough may be able to assist us with the cost of this repair.
If you have any questions or require additional information, please feel free to contact me
at 486 -1920 or the Chief Range Officer Al Affinito at 539 -1920
Thank you for your consideration.
Sincerely,
Lor4ffinito
Secretary
Kodiak Island Sportsman's Association
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MAR 1 2 2008