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KENA~ SKA
CITY OF KENAI
PLANNING AND ZONING COMMISSION
RESOLUTION NO. PZ06-11
A RESOLUTION OF THE PLANNING AND ZONING COMMISSION OF THE CITY OF
KENAI, ALASKA, RECOMMENDING TO THE COUNCIL THAT KMC 14.20.290 BE
AMENDED TO CLARIFY WHICH ISSUES MAY BE APPEALED TO THE BOARD OF
ADJUSTMENT AND SETTING FORTH RULES REGARDING WHO HAS STANDING TO
BRING APPEALS.
WHEREAS, the intent of the Kenai Zoning Code (KMC 14.20.321) is to enhance public health,
safety and welfare through, generally, the regulation of use of land; and
WHEREAS, land use and zoning regulations do impose significant burdens on the use of
privately owned land, which are necessary for the enhancement of public health, safety and
welfare, and
WHEREAS, the authority and responsibility to enforce the Kenai zoning code is primarily given
to the Administrative Official and Planning and Zoning Administration under KMC 14.20
subject to appeals to the Board of Adjustment, and the state courts; and the authority to grant
some permits and variances is given to the Planning and Zoning Commission, subject to appeals
to the Board of Adjustment and the state courts; and
WHEREAS, a municipality is required by AS 29.40.060 to grant standing to a "person
aggrieved" by a zoning decision made by municipal officials, and the Alaska Supreme Court has
held that this shows the Legislature has chosen to limit standing in the area of land use law, in
order to prevent excessive litigation and undue delay of final decisions, Earth Movers of
Fairbanks v. Fairbanks North Star Borough, 865 P.2d 741, 743 n. 6, rehearing denied.
Additionally a liberal rule of standing would potentially create a land use battleground that would
unduly tax the resources of the municipality in addition to impairing the free enterprise system
and unduly interfering with the use and development of private property; and
WHEREAS, recent experiences of the Planning and Zoning Commission and Board of
Adjustment show there is uncertainty about the standing of persons to appeal under the current
Kenai zoning code, which should be eliminated by amending the code.
NOW, THEREFORE, THE PLANNING AND ZONING COMMISSION OF THE CITY OF
KENAI, ALASKA recommends that the Kenai Municipal Code 14.20.290 be amended as set out
in Attachment A to this resolution.
PASSED BY THE PLANNING AND ZONING COMMISSION OF THE CITY OF KENAI,
ALASKA, this 8th day of February, 2006.
Resolution No. PZ06-11
Page 2 of 2
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CHAIRMAN
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14.20.290 Appeals-Board of Adjustment
(a) 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 ph. s~ addresses of the appellant;
(2) A description of the action or determination from which the appeal is sought 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 "ag 'grieved
ep rson." [THE APPEAL SHALL BE HEARD BY THE KENAI CITY
COUNCIL ACTING AS THE BOARD OF ADJUSTMENT.]
(4) Andperson(s) aggrieved by a final 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.
(5) 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 subiect of the action or
determination under appeal; or 2) the administrative official; or 3) an owner of
real property who can show proof of the adverse effect that the action or
determination has or could have on the use, enjoyment, or value of the real
property owned by that person. An interest that is no different from that of the
e~public is not sufficient to make a person aggrieved; or 4) andperson who
was entitled under Section 14.20.280(c) to notice by mail of a public hearing on
an application for the action or determination.
(6) A statement of the relief requested by the appellant.
(7) The street address 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 pro >l ertX
(b) The City Clerk shall reject any notice of appeal that does not comply with the
requirements of section 14.20.290(x) and notif t~ppellant 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.
(c) The appeal shall be heard by the Kenai City Council acting as the Board of Adjustment.
(d) 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 a aig nst 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.
(e) Procedure.
(1) The Board of Adjustment shall ordinarily set a date for and hold a hearing on all
appeals within 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(x)(1)-(10) and (b). For good cause, the Board of Adjustment
Resolution PZ06-11
Page 1 of 2 Attachment A
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') 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 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 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 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.
Resolution PZ06-11
Page 2 of 2 Attachment A