HomeMy WebLinkAboutOrdinance No. 2142-2006SUBSTITUTE
Suggested by: Mayor Porter
CITY OF KENAI
ORDINANCE NO. 2142-2006
AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING
KMC 14.20.290 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) 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(Alaska 1993~. 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, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI,
ALASKA that KMC 14.20.290 is amended as set out in Attachment A to this
ordinance.
PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 15th day of March,
2006.
~~~~ /.1,~/ ~ /~./
PAT PORTER, MAYOR
Ordinance No. 2142-2006 SUBSTITUTE
Page 2 of 2
ATTEST:
~~2~e~"f.-~~j. ~/,/r..P,~ee=~
Carol L. Freas, City Clerk
Introduced:
Second reading:
Adopted:
Effective:
February 1, 2006
March 15, 2006
March 15, 2006
April 15, 2006
14.20.290 Appeals-Board of Adjustment
~ (a) An~person(s) aggrieved by a final decision of the administrative officiai or Cominission
may file an appeal. The appeal shali be heard by the Kenai City Council actinQ as Yhe
Board of Adjustment. To be a"person(sl ag~rieved" Uv a final decision of the
administrative official or Commission the person must be: 1) the applicant for the acrion
taken or detenninatioi~, or the owner of the pro»erty that is the subjecY of the action ar
determinatioil under appeal; or 2) the administrative official; or 3 an occupant or owner
of an interest in real property who can show proof of The adverse effect that the acfion or
detei~nination has or could have on the use, enioyment, or value of that real properCy. An
interest that is no different from that of the eeneral public is not sufficient to make a
person ae~rieved; or 4) any person who was entitled under Secfion 14.20.280(c to notice
bv mail of a public hearing on an a~plication for the action or determination; or, 5) a
residenl 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 Cierk wifhin fifteen (15) days of the decision. The
appeal notice sha11 be in writing and must eontain:
(1) The signature, name, and mailing and physical addresses of the appellant
(2) A description of the action or determination from which 111e appeal is sought and
the date upon which it becaane a finai decision;
(3) The reason for the appeal, which must include a description of harm to the
appellant, iuciuding why the appellant meets the defmition of aii "a~
ep rson." [THE APPEAL SHALL BE HEARD BY THE KENAI CITY
COUNCIL ACTING AS THE BOARD OF AD7USTMENT.]
~~~~ (4) A statement of the relief requested b Y~ppellant.
(5) The street address of the property that is flie subject of the aetion or determination
being appealed and the name and address of the owner(s) of the property.
(6) A filina and records preparation fee is $100 will be char~ed. An applicaTion to
proceed with an appeal as an indiQent may be filed with t~he Citv C1erk's office oi1
a form provided by the Clerk. The chair of the board of adjusfinent may allow ui
~Iieant who quali£ies as an indieent a reduced filin f~ ~ee, a pa~plan, or a
waiver of the filinQ fee where the chair is able to make a written ~uding, based on
information provided by the applicaut, that payment of the a~peal fee would be a
financial hardship for fl1e a~pellant. Based upon the inFormarion provided, the fee
mav be reduced or waived 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% Waiver
101-149% 75% Waiver I
150-174% 50% Waiver I
175-199% 25% Waiver '
200%plus No Waiver
Ordinance No. 2142-2006 SUBSTITUTE
Page 1 of 2 Aftachsnent A
An~appellants with incoine equal to or less than 200 percent of the HHS poverty
guidelines for Alaska for Yhe vear in whicl~ the appeal is filed mav a~plv for a
payment plan in which the filing fee shall be paid in full within six (6) inonths of
the date of fi1inQ.
(c) 'Pl~e City Clerk shall reject any notice of appeal that does not complv wiYh the
requirements of section 14.20.290(b) and notify the appellant of the reasons for re'eci tion•
If a notice of appeai is rejected for reasons other than timeliness, a eorrected notice of
appeal that complies with this section w,i11 be accepted as timelv if filed within seven (7)
days oP the date of the mailin~ of the notice of rejection. The Board of Adjushnent shall
resolve any issues of standin~ or whether a party is "aggrieved" under KMC
14.20.290(a).
(d) The appeal shall be heard bv the Kenai City Council acting as the Board of Adjustment.
(e) The following act or determinations mav not be agpealed: (1) a decision to cite or noC to
cite a person for a violation of the code under KNIC 14.20.260 or any other provisions of
the code; (2) a decision not to issue aii enforcement order under KMC 14.20.260 or any
other provision of the code, 3) any recommendation for or a ang_ZSt approval of the
adoption, revision, or amendmeut of the zonin~ code, zoning map, comprehensive plan,
any other plan, a rezonin or anv other matter involvin~ a recommendation.
(~ Procedure.
(1) The Board of Adjushnent shall ordinarily set a date For and bold a hearing on all
appeals within thirty (30) days of the filvlg of Che 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)(1}-(10) and (b). For good cause, the Boaxd 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 paz-ties and to
al1 property owners within three hmldred feet (300~ of the property involved aC
least fifteen (15) days priar Co fl1e hearing. Notices to the appellant and/or
applicant for Che action or determination must be sent by certifted mail, return
receipt requested.
(2) Within thirty (30) days after fhe hearing, the Board of Adjustment sha11 render a
decision on the appeal. In exercising the above-mentioned powers, the Board of
Adjushnent may reverse, reinand 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 Che Board shall be open to the publia The Board shall issue a
wrllten opinion, stating its deeision, the reasons for its decision, and the vote of
each member upon each question. The Board of Adjushnent n7ay 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 elect~-onie recording shall be
made of the hearings and shall be reduced to written inii~utes aa7d, 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
siCe and mailed to a11 parties participating in the appeal.
Ordinance No. 2142-2006 SUBSTTTUTE
Pa~e 2 of 2 AYtachnzent A
`~~'lla~e ~it a a,~t, ~c`~ t~it a F~r~tr~re„
210 Fidalgo Avenue, Kenai, Alaska 99611-7794
Telephone: (907) 283-7535 / Fax: (907) 283-3014
www.ci.kenai.ak.us
~~~~ ~l~I~I.J~
TO: Mayor P~t Porter aud the Kcnai Ciry Council
FROM: C~~ Cary R. Graves, City Attor~tey
DATE: March 10, 2006
IZE: Substitate Ordinance 2142-2006
This ordinance was post}~oued durn~g the CouncIl meeting of February 15, 2006 in order to look
at changes-prnnarily regarding the issue of standing. Lirst, some of the paragraphs of the
substitute were rearianged to make it more rearlable. Secoild, the substiCULe ordinance has three
substantive changes.
~~ ~~ Subsection (a)(3) was cllanged to atlow stauding fbr "an occupant or owner of ui interest n~ real
properry" who can show that the use, vaiue or enjoyment of the propeity has been adverseiy
affected. In Che previous version, only an owner would have standing. The new language
broadens the standing rules and allows a cenanL to have sCanding.
Subsect~ion (b)(6) was added to prc~vide for a$100 filuig fee. That is the same amount requued
to apply for a conditional use l~ermit. The subsection allows for waiver of the fees for persons
who cannoC afford iY. The Ianguage is siinilar to language 'rn the Kenai Peninsula Borough code.
The third ehange is language l~roviding that the Board of Adjustment rather than the City Clerk
will decide any standing issues. The new language is ui subseetion (c).
Under Qze subsutute ordinance the following~ pcople ,will have standing: 1) the applicant or
owner of ihe subject properry; 2} the City Manager or his/her designee; 3) an occupant or person
ownin~ an interest in real property who can show ui adverse impact on the use, value oi
enjoyment of i:he property; and 4) an owner of property within a 300.foot pei~iphery who is
entiCled to notice under KMC 14.20.280(c)
If the Council wishes to broaden the standing rule more it may want to consider the followirig
additional change. Amend subsection (a)(4} to grant standing to "any owupant oz ownea~ of an
~ interest in real property within a one-mile periphery of the subject property." That wouid atiow
~~ ~~~ sta~iding for persons around the property whether or not they could show an actual harm to
Mayor Pat Porter and the Kenai Ciry Cow~cil
March 10, 2006
Paee 2 of 2
property they occupy or own an interest in. The one-miie periphery could, of course, be enlarged
or reduced. I remain concei~zed Chat language basing standing on city residency would noC
sm~vive a judicial ehallenge. This additional langua~e woutd gzant liberal standing to area
residents and property owncrs without basing standing on city residency.
Fnially, there was a sugaestion that a person should be able to file an appeal with the City
Administration, not just with the City Clerk. If Council wishes to inake thaL change, the
language in subsection (b) should be changed to say the appeals "must be submitCed in writing to
the CiCy Administration within fifteen (15) days of the deeision." My understanding is that the
Clerk is concerned that amending the pmcess to allow filiug with the City AdministraCion could
increase the Iikclihood of an appeal beuig lost or inishandled.
Please let ine laiow if you tlave any questions.
CRG/sp