HomeMy WebLinkAboutOrdinance No. 3011-2018Ordinance No . 3011-20 18
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Section 1. Amendment of Section of the Kenai Municipal Code: That Kenai Municipal Code,
Section 14.2 0.290 -Appe als -Board of adjustment, is hereby amended as fo llows:
14.20.290 Appeals -Board of CAJAdjustment.
(a) Any person(s) aggrieved by a final decision of the administrative official or Commission
and a party of record may file an appeal. The appeal shall be heard by the Kenai City Council
acting as the Board of Adjustment. To be a "person(s) aggrieved " by a final decision of the
administrative official or Commission the person must be: (1) the applicant for the action
taken or determination, or the owner of th e property that is the subject of the action or
determination under appeal; or (2) the administrative official; or (3) a[N] !filml_occupant or
owner of an interest in real property who shows that the decision of the administrative official
or Commission has or could have an adverse effect on the legal occupant or owner's use or
enjoyment of the property or on the value of the property interest asserted. A legal occupant
is an occupant with a current rental or lease agreement executed by the owner. or owner's
agent. of the real property in question . [CAN SHOW PROOF OF THE ADVERSE EFFECT
THAT THE ACTION OR DETERMINATION HAS OR COULD HAVE ON THE USE ,
ENJOYMENT, OR VALUE OF THAT REAL PROPERTY .] An in terest that is no different from
that of the general public is not sufficient to make a person aggrieved. To be a "p arty of
record ." a person. legal entity or government agency. must show that the person. legal entity
or government agency participated with either oral or written comments at the hearing before
the planning and zoni ng commission or before the administrative official making a final
decision.[; OR (4) ANY PERSON WHO WAS ENTITLED UNDER KMC 14.20.280(C) TO
NOTICE BY MAIL OF A PUBLIC HEARING ON AN APPLICATION FOR THE ACTION OR
DETERMINATION; OR (5) A RESIDENT OF THE CITY OF KENAI]
(b) Appeals from final decisions of the administrative official or the Commission must be
submitted in writing to the City Clerk within fifteen (15) days of the decision. The appeal
notice shall be in writing and must contain:
(1) The signature, name, and mailing and physical addresses of the appellant;
(2) A description of the action or determination from which the appeal is soug ht
and the date upon which it became a final decision;
(3) The reason for the appeal, which must include a description of harm to the
appellant, including why the appellant meets the definition of an "aggrieved
person ";
(4) A statement of the relief requested by the appellant ;
(5) The street add ress of the property that is the subject of the action or
determination being appealed and the name and address of the owner(s) of the
property;
(6) The appellant shall pay a filing and records preparation fee as set forth in the
City's schedule of fees adopted by the City Council. An application to proceed with
an appea l as an indigent may be filed with the City Clerk 's office on a form provided
by the Clerk. The c hair of the Board of Adjustment may allow an applicant who
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Ordinance No . 3011-2018
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qualifies as an indigent a reduced filing fee[,] or a payment plan, [OR A WAIVER
OF THE FILING FEE] where the cha ir is able to make a written finding , based on
information provided by the applicant, that payment of the appeal fee would be a
financial hardsh ip for the appellant. Based upon the information provided, the fee
may be reduced in accordance with the following schedule:
Annual income as a percent of current Health and Human
Services (HHS) Poverty Guidelines for Alaska Percent of fee reduced
1-100% [100) 90% Waiver
101-149% 75% Waiver
150-174% 50% Waiver
175-199% 25% Waiver
200% plus No Waiver
Any appellants with income equal to or less than two hundred percent (200%) of the
HHS poverty guidelines for Alaska for the year in which the appeal is filed may apply
for a payment plan in which the filing fee shall be paid in full within six (6) months of the
date of filing.
(c) The City Clerk shall reject any notice of appeal that does not comply with the
requirements of KMC 14.20.290(a) or (b) and notify the appellant of the reasons for rejection.
If a notice of appeal is rejected for reasons other than timeliness, a corrected notice of appeal
that complies with this section will be accepted as timely if filed within seven (7) days of the
date of the mailing of the notice of rejection. The appellant may appeal the Clerk's final
determination on [THE BOARD OF ADJUSTMENT SHALL RESOLVE ANY ISSUES OF]
standing or whether a party is "aggrieved" under KMC 14.20.290(a) to the Board of
Adjustment.
(d) The appeal shall be heard by the Kenai City Council acting as the Board of Adjustment.
Members of the Board of Adjustment must be present in person for hearings held on appeals
in order to participate in rendering a decision or voting on an appeal.
(e) The following act or determinations may not be appealed : (1) a decision to cite or not
to cite a person for a violation of the code under KMC 14.20 .260 or any other provisions of
the code ; (2) a decision not to issue an enforcement order under KMC 14.20 .260 or any
other provision of the code ; (3) any recommendation for or against approval of the adoption ,
revision , or amendment of the zoning code, zoning map, comprehensive plan , any other
plan , a rezoning or any other matter involving a recommendation .
(f) Procedure.
(1) The Board of Adjustment shall ordinarily set a date for and hold a hearing on all
appeals within forty-five (45) days of the filing of the appeal. However, should the forty-
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Ordinance No. 301 1-2018
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fifth day fall on a weekend or a municipal holiday, the hearing may be scheduled for the
next following weekday which is not a municipal hol iday under KMC 23.40 .020(a)(1)
through (10) and (b). For good cause, the Board of Adjustment may hold the hearing
up to sixty (60) days after the filing of the appeal. Notice of the time and place of such
hearing shall be mailed to all interested parties and to all property owners within three
hundred feet (300') or the appropriate distance as required by the public hearing of the
property involved at least fifteen (15) days prior to the hearing. Notices to the appellant
and/or applicant for the action or determination must be sent by certified mail , return
receipt requested .
(2) Within thirty (30) days after the hearing , the Board of Adjustment shall render a
decision on the appeal. In e xercising the above-mentioned powers, the Board of
Adjustment may reverse , remand or affirm , wholly o r partly, or may modify the order,
requi rement, decision or determination, as ought to be made, and to that end shall have
all the powers of the body from whom the appeal is taken .
(3) All hearings of the Board shall be open to the public. The Board shall issue a
written opinion, stating its decision, the reasons for its decision, and the vote of each
member entitled to vote upon each question . The Board of Adjustment may undertake
deliberations immediately upon the conclusion of the hearing on appeal or may take the
matter under advisement and meet at such other time as is convenient for deliberations
until a decision is rendered. Deliberations need not be public and may be in consultation
with the City Attorney. An electronic recording shall be made of the hearings and shall
be reduced to written minutes and , if needed, a verbatim transcript. The minutes and
verbatim transcript shall be made a public record. Copies of the decision shall be
promptly posted on the City 's official web site and mailed to all parties participating in
the appeal.
(Ords. 925, 1554-93, 1650-95, 2082-2005, 2142-2006 , 2528-2011 , 2743-2014, 2893-2016)
Sect ion 2. Severability: That if any part or provision of this ordinance or application thereof to
any person or circumstances is adjudged invalid by any court of competent jurisdiction, such
judgment shall be confined in its operation to the part, provision , or application directly involved
in all controversy in which this judgment shall have been rendered , and shall not affect o r impair
t he validity of the remainder of this title or application thereof to other persons or circumstances .
The City Council hereby declares that it would have enacted the remainder of this ordinance even
without such part, provision, or application.
Section 3. Effective Da te: That pursuant to KMC 1.15.0?0(f), this ordinance shall take effect
30 days after enactment.
ENACTED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 4th day of April , 2 018 .
"'BRIAN GABRIEL SR., MAYOR
ATTEST:
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Ordinance No. 3011 -2018
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Introduced: March 7, 2018
Enacted: April 4, 2018
Effective: May 4, 2018
'lltffar UJitli a PaJ'~ Ot't; UJ/t/r, a ~t&l.l"e JI
210 Fidalgo Ave, Kenai, Alaska 99611 -7794
Telephone: (907) 283-7535 I Fax: (907) 283-3014
www.kenai.c ity
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Mayor Gabriel and Kenai City Council
Council Members Pettey and Knackstedt
March 1, 2018
Ordinance No. 3011-2018 -Amending Kenai Municipal Code to Amend
Board of Adjustment Appeals.
We recognize the importance in providing residents and others the opportunity to participate in
decisions made by the Planning and Zoning Commission and administrative officials. However,
excessive appeals can be harmful in delaying business growth, development, and other actions
of property owners, and superfluously expends City resources . Amendments proposed in this
ordinance strike a balance between concerned community members , business growth and
development, and other actions of property owners by limiting standing to applicants ,
administrative officials , and those which rent , lease , or own property affected by the decision
which participated in the initial determination. This is more lenient than what is provided for by
the Kenai Peninsula Borough and the cities of Soldotna and Homer. These amendments
provide , if you lease or own property in the City, show your property or enjoyment thereof is
harmed , and participated in the initial determination of the Planning and Zoning Comm ission
decision, you have standing to appeal. We believe that this will provide a fair process in which
legitimate concerns are addressed , where all parties are certain of the issues, and the City's
resources are conserved .
In addition to amending the criteria for who has standing to appeal, we are proposing to adjust
who makes the initial determination of standing or whether a party is "aggrieved ," by providing the
Clerk makes the initial determination on standing , which could then be appealed to the Board of
Adjustment.
Finally , we are proposing to amend the percentage of fee reduction so the appellant has, "skin in
the game ." At this time, our fee is $100 and , even if increased, ten percent of the filing fee
combined with the opportun ity to pay the fee over si x months would not cause an undue hardship
for an appellant considering what is at stake in the appeal.
Your consideration is appreciated .
'Vtt!ap aJ/t~ tl Po.if~ e~ aJ/t~ tl h.tfl.l"e II
210 Fidalgo Ave , Kenai , Alaska 99611 -7794
Telephone : (907) 283-7535 I Fax: (907) 283-3014
www.kenai.city
MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Mayor Brian Gabriel and Kenai City Council
Scott Bloom , City Attorney
March 1, 2018
Legal Analysis of Ordinance 3011-2018
This memorandum provides a legal analysis of Ordinance 3011-2018. The proposed Ordinance
proposes a standard on who has standing to appeal a decision of the Planning and Zoning
Commission or final decision of an administrative official that is less stringent than that of the
Kenai Peninsula Borough, City of Soldotna and City of Homer. These three municipalities requi re
that for someone to have standing to appeal a planning and zoning decision, they must have
participated in the process before the planning and zoning commission either orally or in writing ;
they must own real property and show that the decision could have an adverse effect on the value,
use or enjoyment of the property.
The proposed Ordinance provides a more lenient standard than these municipalities in that it does
not restrict standing for appeals to those that own real property , but expands the standing to
appeal to those that lease or rent property and can show that a decision cou ld impact their
ownership interest or use or enjoyment of the property.
The City of Homer's municipal ordinance with regard to standing was generally approved by the
Alaska Supreme Court in Griswold v. City of Homer, 252 P.3d 1020 (Alaska 2011) with the
following exception. In the described case , the Appellant, Frank Griswold, argued that requiring
someone to have participated before the planning and zoning commission in order to have
standing to appeal violated due process . Id. at 1029. Because Griswold had appeared before the
planning and zoning commission in the case discussed, the Court held that Griswold could not
make this argument and never addressed the due process aspect of it in other terms. Id.
While the aforementioned municipalities do have this requirement, the Municipality of Anchorage
does not. In my opinion, it is a reasonable requirement in that it is not very onerous to provide oral
or written comments and it makes sense that an appellant should provide their objection or
support to the planning and zon ing commission initially, to allow the commission to make an
informed decision , to allow the municipality to deal with the issue in a timely and cost effective
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Ordinance 3011-2018
manner, and to reduce unnecessary delay. It should be noted that while Anchorage does not
require property owners to have participated in planning commission hearings to appeal, an
appellant in Anchorage must deposit $1000 before the appeal is accepted.
"Vtfltl.je with a Past, City with a Future"
tlrecityef,
KENAl~KA ~
210 Fidalgo Avenue, Kenai, Alaska 99611-7794
Telephone : 907-283-7535 I FAX: 907-283-3014
www.kenai.city
MEMORANDUM
TO:
FROM:
DATE:
Mayor Gabriel, Council Members Boyle, Glendening,
Knackstedt, Navarre, & Pettey
Student Representative Gilman
Council Member Molloy ;)(/ V
March 7, 2018 "t"''V
SUBJECT: Ordinance No. 3011-2018 Amending KMC 14.20.290 -Appeals -
Board of Adjustment
This is to respectfully request that , after public hearing and any Council discussion at the Council
Meeting of 3-21-18 , the Council postpone Ordinance No. 3011-2018 to the first meeting of
April, the 4-04-18 Council Meeting, or to a later meeting date when all seven (7) council
members will be present. Due to demands on my business, I am unable to attend the Council
Meeting of 3-21-18.
I do have concerns about some of the language of the proposed amendment to paragraph (a),
specifically the word "shows" in the portion: " ... shows that the decision of the administrative
official or Commission has or could have an adverse effect on the legal occupant or owner's use
or enjoyment of the property or on the value of the property interest asserted." I would like the
opportunity to offer a suggested amendment, and explain the reasons for the suggested
amendment. However, I will not be able to offer a suggested amendment until the packet is due
for the 4-04-18 Council Meeting, and my explanation may have to be verbal.
Ordinance No. 3011-2018 is not time sensitive. Thank you for the Council 's consideration of
my request for a postponement at the Council Meeting of 3-21-18.
theet"IJ'ef.
"Vt11aJe with a Pas~ City with a Future"
210 Fidalgo Avenue, Kenai, Alaska 99611-7794
Telephone: 907-283-7535 /FAX: 907-283-3014
www.kenai.city
KENAl~KA ~
MEMORANDUM
TO:
FROM:
DATE:
Mayor Gabriel, Council Members Boyle, Glendening,
Knackstedt, Navarre, & Pettey
Student Representative Gilman ....., 1
Council Member Molloy i r,,f \
March 29, 2018
SUBJECT: Ordinance No. 3011-2018 Amending KMC 14.20.290 -Appeals -
Board of Adjustment
The goal of Ordinance No. 30 I 1-2018 is to "provide a balance" between competing interests
adversely affected by a decision of the Planning and Zoning Commission or an administrative
official. The ordinance's objective, "in creating this balance," is to "further limit standing for the
filing of an appeal to prevent excessive litigation and undue delay of final dispositions."
However, the ordinance completely eliminates the last two (2) categories of potential appellants,
which in the present ordinance are (4) persons entitled to notice, and (5) City residents.'
Council should consider whether adding limiting language to those last two (2) categories
establishes a better "balance" of the competing inte rests, or whether it is better to somehow
simplify the standing rules in this ordinance altogether. But for striking a balance by adding
limiting language to those last two (2) categories, several proposed amendments are set out under
the attachment "Potential Additional Amendments."
Before the McKay appeal in 2005, Ordinance 2082-2005 (sponsored by Council Member Moore)
amended KMC 14.20.2 90 to add a simple standing rule: "Any person(s) aggrieved by a
decision of the administrative official or Commission may file an appeal."2 Ms. McKay was
a Nikiski resident who had participated before the Planning & Zoning Commission and had
appealed from the Commission's findings on the lease application filed on behalf of Walmart,
findings that the proposed use was the highest and best use , conformed to the airport master plan,
and complied with zoning ordinances and the comprehensive plan. In McKay. the Board of
Adjustment determined that McKay was not an "aggrieved person" under the new definition; but
instead of rejecting the appeal based on the technicality of "no standing," the Board opted to
1 Council added the category (5) City residents in 2006 shortly after the McKay appeal , by an
amendment on the floor to a Substi tute; thi s may have had unintended inclusion consequences, because
there was no participation requirement tied to the category (5) City residents. Category (4) persons
entitled to notice was in the Substitute.
~A copy of Ordinance 2082-2005 is included under the a ttachment "Other Information ."
2
review and rule on the issues that she had raised because of the general interest that the Walmart
lease application had created in the community. The Board denied McKay's appeal unanimously
on the merits.
In early 2006, Ordinance No. 2142-2006 and its Substitute (sponsored by Mayor Porter)
followed quickly after the Board of Adjustment 's decisio n on the McKay appeal in late 2005.
Ordinance No. 2142-2006 (Substitute) was amended on the floor to add category (5) City
residents, then passed as amended, and is the present KMC 14.20.290 that is before Council for
proposed new amendments. 3
In the Mcintosh appeal, BA-18-01, the appellant was a C ity resident, and a legal occupant of
property in the City, but he had not submitted oral or written comments or otherwise personally
participated either before or at a hearing held by the Commission. The Board of Adjustment
denied the appeal unanimously on the merits , affirmed the Commission's decision , and granted a
conditional use permit to the applicant with some amended conditions.
This year, proposed Ordinance No. 3011 -2018 followed quickly after the Board of Adjustment's
decision in the Mcintosh appeal. In making new amendments, we should avoid unintentional
exclusion consequences.
Please also note that part of the rationale for the present set of amendments is "to prevent
excessive litigation." But there has not been excessive litigation of appeals since the 2006
amendments that resulted in the present ordinance. If my count is correct, the Board of
Adjustment Table (from 2018 declining to 2005), shows that, beginning 2006 after McKay, there
were 20 appeals filed to which the present ordinance applied; out of which 7 were withdrawn or
rejected administratively before hearing; 13 appeals went to hearing , but only 12 appea ls were
actually decided by the Board (Murie/la was withdrawn during the hearing).4
3 A copy of Mayor Porter·s supporting memorand um for Ordinance No. 2142-2006 is also included in the
anachmenl '·Other Information."
4 Thank you to the City Attorney and City C lerk for assisting me with developing and vetting the Board of
Adjustment Table, which is also included in the anachrnent "Other Information."
POTENTIAL ADDITIONAL AMENDMENTS
(To The Proposed Amendments)
l . Move t o amend the proposed amendment to AS 14.20 .290(a), subparagraphs (1 ), (2) and
(3) as follows:
14.20.290 Appeals -Board of CAJAdjustment.
(a) Any person(s) aggrieved by a final decision of the administrative official or
Comm ission and a party of record may file an appeal. The appeal shall be heard by the
Kenai C ity Council acting as the Board of Adjustment. To be a "person(s) aggrieved" by a
fina l decision of the administrative official or Commission the person must be : (1) the
applicant for the action taken or determination , or the owner of the property that is the
subject of the action or determination under appeal ; or (2) the admin istrative official ; or (3)
a[N) ~occupant or owner of an interest in real property who states [SHOWS] that the
decision of the admin istrative official or Commission has or could have an adverse effect
on the legal occupant or owner's use or enjoyment of the property or on the value of the
property interest asserted . A legal occupant is an occupant with a current rental or lease
agreement executed by the owner. or owner's agent. of the real property in question . [CAN
SHOW PROOF OF THE ADVERSE EFFECT THAT THE ACTION OR DETERMINATION
HAS OR COULD HAVE ON THE USE, ENJOYMENT , OR VALUE OF THAT REAL
PROPERTY.] An interest that is no different from that of the general public is not sufficient
to make a person aggrieved ; or
2. Move to amend the proposed amendment to AS 14.20 .290(a), to keep subparagraph (4)
"As Is", as follows:
(4) any person who was entitled under KMC 14.20.280(c) to notice by mail of a public
hearing on an application for the action ; or
3. Move to amend the propo sed amendment to AS 14 .20 .290(a), to keep subparagraph (5),
modified as follows:
(5) a resident of the City of Kenai who is a party of record .
4. Move to amend the proposed amendment to AS 14.20.290(a), by relocating proposed
definition of ''party of record" to the end of paragraph (a), and amending it further, as follows:
To be a "party of record." a person . legal entity or government agency , must state [SHOW!
that the person . legal entity or government agency participated with e ither oral or written
comments submitted before or at a hearing held by [BEFORE] the planning and zoning
comm ission or held by [BEFORE) the administrative official making a final decision .
To clarify for Council's review. a c lean version of KMC 14.20.290(a) is set out between the lines
on the next page, showing w h at the text would be if the amendments proposed above are
adopted. Some additional proposed amendm ents follow that text.
Clean Version:
14.20 .290 Appeals -Board of Adjustment.
(a) Any person(s) aggrieved by a final decision of the administrative official or
Commission and a party of record may file an appeal. The appeal shall be heard by the
Kenai City Council acting as the Board of Adjustment. To be a "person(s) aggrieved" by a
final decision of the administrative official or Commission the person must be : (1) the
applicant for the action taken or determination, or the owner of the property that is the
subject of the action or determination under appeal ; or (2) the administrative official ; or (3)
a legal occupant or owner of an interest in real property who states that the decision of the
administrative official or Commission has or could have an adverse effect on the legal
occupant or owner's use or enjoyment of the property or on the value of the property
interest asserted . A legal occupant is an occupant with a current rental or lease agreement
executed by the owner, or owner's agent, of the real property in question . An interest that
is no different from that of the general public is not sufficient to make a person aggrieved;
or (4) any person who was entitled under KMC 14.20.280(c) to notice by mail of a public
hearing on an application for the action or determination and who states that the procedure
for property owner notification did not comply with KMC 14.20.280(c); or (5) a resident of
the City of Kenai who is a party of record . To be a "party of record," a person , legal entity
or government agency, must state that the person , legal entity or government agency
participated with either oral or written comments submitted before or at a hearing held by
the planning and zoning commiss ion or held by the administrative official making a final
decision .
5. Move to amend the proposed amendment to AS 14.20.290(b), subparagraph (3), as
follows:
(3) The reason for the appeal, which must include a description of harm to the
appellant, including why the appellant meets the definition of an "aggrieved person "
and/or "party of record";
6. Move to amend the last sentence of AS 14.20.290(c), to add the phrase "or is a party of
record" as follows:
The appellant may appeal the Clerk's final determination on [THE BOARD OF
ADJUSTMENT SHALL RESOLVE ANY ISSUES OF] standing or whethe r a party is
"aggrieved" or is a "party of record " under KMC 14 .20.290(a) to the Board of Adjustment,
together with the appellant's other reasons for the appeal ;
OTHER INFORMATION
Year No. Atu:~ellant Decision
2018 BA-18-01 Mcintosh Appeal Den ied
Appeal CUP Granted for CME PZC Affi rm ed
CUP A mended & Granted
2017 NOBOA NO BOA HEARINGS NO BOA DECISIONS
Tunseth -Withdrawn
2016 BA-16-03 Is aacs Appeal Den ied
Appeal CUP Denied fo r CME PZC Affi rmed
C UP Den ied
BA-16-02 Twait & Mo rning Appea l Granted
Appeal An imal Control 's Ken n el Animal Control's Li cense Denial
License Denial Re versed
Li cense Granted With Conditi ons
BA-16-01 Wa g goner Appeal Granted
Ap peal Vari a nce Approved for 4 PZC Reversed
Family Dwelling Construction Variance Denied
2015 BA-15-01 Garretson Appeal Granted
Appea l CUP De nied for Emotional PZC Rever sed
Support Animal CUP Granted With Co nditions
2014 NONE NONE NONE
2013 NOBOA NO BOA HEARINGS NO BOA DECISIONS
Fish -Rej ected for timeliness
2012 BA-12-0 1 Lashbrook Appeal Den ie d
Appeal of C o de Enforc e me nt Noti ce &
Code Enforcem e nt Noti c e & Condemnation Order Amend ed
Condemnation Order
Lashbrook (June Appeal) -
Withdrawn (Adm inistrative Decision
Reso lved Admini strative ly) -Ap p ea l
re -filed i n Oc tob er 2012
2011 BA-11-0 1 Flanders A ppeal Granted in P art, &
App eal C UP G ra nted to Denied in Part
KP Racing Lions CUP Amended Wi th Conditions
-1 -B OA Decisio n Table 2018 Declin ing to 200 5
2010 BA-10-04 Goddard; Inlet Fish Appeal Den ied
Appeal CUPs Granted to CINGSA PZC Affirmed
CUPs Amended W ith Add'I
Condit ions & Granted
BA-10-03 Lynford Dlsquie Appea l is denied
Letter sent from BOA Chair Enforcement order amended in
part
BA-10-02 Lynford Disquie Appeal Denied
CUP revoked
BA-10-01 Murrieta No decision issued , appeal
Encroachment Permit withdrawn during hearing
Goggia -Withdrawn
2009 BZ-09-47 Campanella Appeal Denied
Should be Appeal CUP Granted With PZC Reversed on Granting CUP
BA 09-01 Condition to Install Circular Dr ive CUP Denied
Kenai Landing, Inc.
Withd rawn. Administrative Decision
Resolved Administratively
2008 NONE NONE NONE
2007 NONE NONE NONE
2006 BA-06-02 Pearce Appeal Granted
Appeal Carlson 's 2nd CUP Granted PZC Reve rsed
for only Cabin Rentals CUP Denied
BA-06 -01 Carlson Appea l Denied
Appeal CUP Denied for Fishing PZC Affirmed
Guide Business & Cabin Rentals CUP Denied
Fulk -Withdrawn
2005 BA-05-04 McKay Appeal Denied
Appeal PZC's Findings on PZC's Find ings Affirmed
Walmart 's Lease Application
-2 -BOA Dec isi on Table 2018 Declining to 2005
BA-05-03 Snow Remanded to the P&Z
Commission for consideration of
rezoning the property as limited
Commercial
BA-05-02 James A. Krein Appeal Denied
Amendment to Patrick J . Doyle Amendment granted with
CUP additional conditions
BA-05-01 Blue Sky Pilots Trust Appeal Denied
Appeal CUP denied CUP Denied
Skrha -Rejected for timeliness
The above table includes the eight (8) appeals that were filed in the timeframe of 2018 declining
to 2005, but were either denied for timeliness, withdrawn, or were resolved administratively.
Those appeals I isted above are the following:
2017 -Tunseth -Withdrawn
2013 -Fish -Rejected for timeliness
2012 -Lashbrook (June Appeal) -Withdrawn (Administrative Decision Resolved
Administratively) -Appeal re -filed in October 2012
2010 -Murrieta -Withdrawn during the hearing
2010 -Goggia -Withdrawn
2009 -Kenai Landing, Inc. -Withdrawn -Administrative Decision Resolved Administratively
2006 -Fulk -Withdrawn
2005 -Skrha -Rejected for timeliness
-3 -BOA Decision Table 2018 Decl ining to 2005
Suggested by: Councilor Moore
CITY OF KENAI
ORDINANCE NO. 2082-2005
AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING
KMC 14.20.290 TO REQUIRE NOTICES OF BOARD OF ADJUSTMENT HEARINGS BE
SENT BY CERTIFIED MAIL TO THE APPELLANT AND ANY APPLICANT FOR A PERMIT
BEING APPEALED FROM AT LEAST FIFTEEN (15) DAYS PRIOR TO THE HEARING;
ALLOWING THE BOARD OF ADJUSTMENT FOR GOOD CAUSE TO SET THE PUBLIC
HEARING DATE UP TO SIXTY (60) DAYS AFTER THE FILING OF THE APPEAL; AND
UPDATING AND CLARIFYING OTHER P ORTIONS OF THE APPEAL PROCESS.
WHEREAS, currently under KMC 14.20.290, notices of a public hearing are sent by
regular mail at least ten (10) days prior to the public hearing; and,
WHEREAS, notices to the appellant and any applicant for a permit being appealed
from should be sent by certified mail so the City can confirm when such notices were
delivered; and,
WHEREAS, such notices should be mailed fifteen (15) days in advance instead of the
) current ten (10) days; and,
)
WHEREAS, while the code now requires the public hearing to be held within thirty (30)
days, circumstances can arise where it is impractical for the hearing to be held in that
time period. Therefore, the Board of Adjustment should be able to schedule the
hearing up to sixty (60) days from the date of the appeal for good cause; and,
WHEREAS, other sections of KMC 14.20.290 should be updated and clarified.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI,
ALASKA that KMC 14.20.290 is amended as follows:
14.20.290 Appeal s--Board of adjustment
(a) Appeals from decisions of the administrative official or the
Commission must be submitted in writing to the City Clerk
within fifteen (15) days of the decision. The appeal notice
shall be in writing and must contain: 1) the name and
address of the appellant; 2) a description of the action or
determination from which the appeal is sought; and 3) the
reason for the appeal, which must include a description of
harm to the appellant. Any person(s) aggrieved by a
decision of the administrative official or Commission may
file an appeal. The appeal shall be heard by the Kenai City
Council acting as the Board of Adjustment.
Ordinance No. 2082-2005
Page 2 of 3
(b) Procedure:
( 1) The Board of Adjustment shall ordinarily set a date for
and hold a hearing on all appeals with thirty (30) days of
the filing of the appeal. However, should the thirtieth
day fall on a weekend or a municipal holiday, the
hearing may be scheduled for the next following
weekday which is not a municipal holiday under KMC
23.40.020(a)(l)-(10) and (b). For good cause, the Board
of Adjustment may hold the hearing up to sixty (60)
days after the filing of the appeal. Notice of the time and
place of such hearing shall be mailed to all interested
parties and to all property owners within three hundred
(300) feet of the property involved at least [TE N 10)
fifteen (15) days prior to the hearing. Notices to the
appellant and/or applicant for the action or
determination must be sent by certified mail, return
receipt requested.
(2) Within thirty (30) days after the hearing, the Board of
Adjustment shall render a decision on the appeal. In
exercising the above-mentioned powers, the Board of
Adjustment may reverse, remand or affirm, wholly or
partly, or may modify the order, requirement, decision
or determination, as ought to be made, and to that end
shall have all the powers of the body from whom the
appeal is taken.
(3) All hearings [MEETINGS] of the Board shall be open to
the public. [AND) The Board shall issue a written
opinion, stating [KEEP MINUTES OF ITS PROCEED-
INGS SHOWING] its decision, the reasons for its
decision , and the vote of each member upon each
question. The Board of Adjustment may undertake
deliberations immediately upon the conclusion of the
hearing on appeal or may take the matter under
advisement and meet at such other time as is
convenient for deliberations until a decision is rendered.
Deliberations need not be public and may be in
consultation with the City Attorney. An electronic
recording shall be made of the hearings and shall be
reduced to written minutes and, if needed, a verbatim
transcript. Said minutes and verbatim transcript shall
be made a public record. Copies of the decision shall be
promptly posted on the City's official web site and
mailed to all parties participating in the appeal.
)
Ordinance No . 2082-2005
Page 3 of 3
PASSED BY THE COUNCIL OF THE CITY OF KENAI , ALASKA , this second day of
March, 2005 .
ATTEST:
~x~
Carol L. Freas, City Clerk
(2/7 /05 sp)
~~
PAT PORTER, MAYOR
Introduced:
Adopted:
Effective:
February 16, 2005
March 2, 2005
April2,2005
"Vt1/~e with a Pas~ City with a Future"
thecitytJf
KENAI. AlASKA
¥
MEMORANDUM
210 FidalgoAvenue . Kenai, Alaska 99611 -7794
Telephone: (907) 283-7535 /Fax: (907) 283-3014
www.ci.kenai.ak.us
TO: FROM:C~k
DATE:
Mayor Pat Porter and the Kenai City Coui1cil
Cary R. Graves, City Attorney
March 10, 2006
RE: Substitute Ordinance 2142-2006
This ordinance was postponed during the Council meeting of February 15, 2006 in order to look
at changes-primarily regarding the issue of standing. First, some of the paragraphs of the
subslitute were rearranged to make it more readable. Second , the substitute ordinance has three
substantive changes.
Subsection (a)(3) was changed to allow standing for "an occupant or owner of an interest in rea l
property" who can show that the use , value or enjoyment of the property has been adversely
affected. In the previous version, only an owner would have standing. The new language
broadens the standing rules and allows a tenant to have standing.
Subsection (b)(6) was added to provide for a $100 filing fee. That is the same amount required
to apply for a conditional use permit. The subsection allows for waiver of the fees for persons
who cannot afford it. The language is similar to language in the Kenai Peninsula Borough code.
The third change is language providing that the Board of Adjustment rather than the City C lerk
will decide any stand ing issues . The new language is in subsection (c).
Under the substitute ordinance the following people will have standing: 1) the applicant or
owner of the subject property; 2) t he City Manager or his/her designee; 3) an occupant or person
owning an interest in real property who can show an adverse impact on the use, va lu e or
enjoyment of the property; a nd 4) an owner of property within a 300-fooc periphery who is
entitled to notice under KMC 14.20.280(c)
If the Council wishes to broaden the standing rule more it may want to consider the following
additional change. Amend subsection (a)(4) to grant standing to "any occupant or owner of an
interest in real property within a one-mile periphery of the subject propert.y." That would allow
standing for persons around the property whether or not they could show an actual har m co
Ma)'or Pat Porter and the K enai City Council
March I 0, 2006
Page 2 of 2
property they occupy or own an interest in. The one-mile periphery could, of course, be enlarged
or reduced . I remain concerned that language bas ing s tanding on city r es idency would not
survive a judicial challenge. This additional language would grant liberal standing to area
residents and prope1ty owners without ba s ing standing on city residency.
Finally, there was a suggestion that a p erson should be able to file an appeal with the City
Administration, not just with the City Clerk. If Council wishes to make that change, the
la ng uage in subsection (b) should be changed to s ay the appeals "must be submitted in writing to
t he City Administration with in fifteen (15) days of the decision." My understanding is that the
Clerk is concerned that amending the process to allow filing with th e City Administration could
increase the likelihood of an appeal being lost or mish andled.
Please le t me k now if you have any questions.
CRG/sp
From: Bob Molloy
To:
Cc:
Jamje Heinz
Jacaue!y n Ken nedy
Subject: Lay Down f or ORD No. 3011 -2018
Wed nesday, Apri l 04, 2018 8 :31 :43 AM Date:
Hi Jamie:
I made an error in the clean version on page 14 of the electronic packet. The potential proposed
amendment to KMC 14 .20.290(a) is:
(4) any person who was entitled under KMC 14.20.2 80(c) to notice by mail of a public hearing on
an application for the action or determination;
The phrase "and who states that the procedure for property owner notificat ion did not comply with
KMC 14 .20 .280(c)" should not have been included in the clean version . The clean vers ion is:
Clean Versjon:
14.20.290 Appeals -Board of Adjustment.
(a) Any person(s) aggrieved by a final decision of the adm ini strative official or
Commission and a party of record may file an appeal. The appeal shall be heard by the
Kenai City Council acting as the Board of Adjustment. To be a "person(s) aggrieved" by a
final decision of the administrativ e official or Commission the person must be : (1) the
applicant for the action taken or determination, or the owner of the property that is the
subject of the action or determination under appeal ; or (2) the admin istrative official ; or (3) a
legal occupant or owner of an interest in real property who states that the decision of the
administrative official or Commission has or cou ld have an adverse effect on the legal
occupant or owner's use or enjoyment of the property or on the value of the property
interest asserted. A lega l occupant is an occupant with a current rental or lease agreement
executed by the owner, or owner's agent, of the real property in question. An interest that is
no different from that of the general public is not sufficient to make a person aggrieved; or
(4) any person who was entitled under KMC 14.20.280(c) to notice by mail of a public
hearing on an application for the action or determination ; or (5) a resident of the City of
Kenai who is a party of record. To be a "party of record," a person , legal entity or
government agency, must state that the person , legal entity or government agency
participated with either oral or written comments submitted befo re or at a hearing held by
the planning and zoning commission or held by the administrative official making a final
decision .
P le ase m a ke thi s a lay down fo r tonight's Counc il Meeting. Thank you .
Bo b Molloy
Council M ember