HomeMy WebLinkAboutOrdinance No. 2743-2014Sponsored by: Council Member Molloy
CITY OF KENAI
ORDINANCE NO. 2743 -2014
AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING
KMC 14.20.290- APPEALS -BOARD OF ADJUSTMENT, TO REQUIRE BOARD
MEMBERS TO BE PHYSICALLY PRESENT AT BOARD OF ADJUSTMENT HEARINGS
IN ORDER TO PARTICIPATE IN RENDERING A DECISION OR VOTING ON THE
APPEAL.
WHEREAS, KMC 14.20.290 provides that appeals from final decisions of the Planning
& Zoning Commission and administrative officials shall be heard by the Kenai City
Council acting as the Board of Adjustment, except for matters not appealable as
provided in KMC 14.20.290(e); and,
WHEREAS, the hearing on appeal before the Board of Adjustment is a de novo hearing
in which the Board of Adjustment acts as a quasi-judicial body to hear and review the
matter (both the law and the facts) independently, without deferring to the decision of
the Planning and Zoning Commission; and,
WHEREAS, the Board of Adjustment determines the facts from the testimony of the
witnesses under oath and the material that may be admitted into evidence at the
hearing; and,
WHEREAS, the parties to the appeal who appear before the Board of Adjustment have
a due process right to a fair hearing on the appeal; and,
WHEREAS, KMC 14.20.290 is silent as to
Adjustment can participate in an appeal
physically present at the hearing; and,
whether or not a member of the Board of
by telephone or other means when not
WHEREAS, the parties' due process right to a fair hearing on the appeal is supported
by requiring members of the Board of Adjustment be present in person at the hearing
in order to participate in rendering a decision or voting on the appeal; and,
WHEREAS, it is in the best interests of the City of Kenai to amend KMC 14.20.290 to
require the physical presence of a member of the Board of Adjustment during the
hearing held on an appeal in order to participate in rendering the decision or voting on
the appeal;
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI,
ALASKA, that
Section 1. Form: That this is a code ordinance.
New Text Underlined; [DELETED TEXT BRACKETED]
Ordinance No. 2043 -2014
Page 2 of 4
Section 2. Amendment of Section 14.20.290 of the Kenai Municipal Code: That
Kenai Municipal Code, Section 14.20.290 - Appeals —Board of adjustment, is hereby
amended as follows:
14.20.290 Appeals —Board of adjustment.
(a) Any person(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. 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) an occupant or owner of an interest in 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 that real property. 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.
(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 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 "aggrieved
person."
(4) A statement of the relief requested by the appellant.
(5) 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 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 appeal as an indigent may be filed with the City Clerk's office on a
form provided by the Clerk. The Chair of the Board of Adjustment may allow
an applicant who qualifies as an indigent a reduced filing fee, a payment
plan, or a waiver of the filing fee where the Chair is able to make a written
finding, based on information provided by the applicant, that payment of the
appeal fee would be a financial hardship for the appellant. Based upon the
information provided, the fee may be reduced or waived in accordance with
the following schedule.
Ordinance No. 2043 -2014
Page 3 of 4
Annual income as a
percent of current
Health and Human
Services (HHS) Poverty
Percent of
Guidelines for Alaska
fee reduced
1 -100%
100% 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(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 Board of Adjustment shall resolve any issues of standing or
whether a party is "aggrieved" under KMC 14.20.290(a).
(d) The appeal shall be heard by the Kenai City Council acting as the Board of
Adjustment. Members of the Board of Adiustment 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.
(� 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(a)(1) —(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')
of the property involved at least fifteen (15) days prior to the hearing. Notices
Ordinance No. 2043 -2014
Page 4 of 4
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 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.
Section 3. Severabilitv: 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 or impair the 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 4. Effective Date: That pursuant to KMC 1.15.070(1), this ordinance shall
take effect 30 days after adoption.
PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this day of April 2,
2014. ��Np'�
PAT PORTER, MAYOR
ATTEST:
Sandra M' igh, City Cl rk
Introduced: March 19, 2014
Adopted: April 2, 2014
Effective: May 2, 2014
"Villaye with a Past, C# with a Future"
210 Fidalgo Avenue, Kenai, Alaska 99611 -7794
Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014
MEMORANDUM
TO: Mayor Porter, Council Members and Student Representative
FROM: Council Member Bob Molloy n
DATE: 03- 12 -14��
SUBJECT: Ordinance No. 2743 -2014
Ordinance No. 2743 -2014 would make two (2) amendments to KMC 14.20.290
Appeals —Board of adjustment, as follows:
Add a new last sentence to Paragraph (d):
(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 rn esent
in person for hearings held on appeals in order to participate in
rendering a decision or voting on an appeal.
2. Add the phrase "entitled to vote" to the second sentence of Paragraph (f)
Procedures, subparagraph (3), so that the second sentence is:
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.
Intent
The intent of this ordinance is simply, and only, to require board members to be
physically present at Board of Adjustment hearings in order to participate in rendering a
decision or voting on the appeal. These amendments do not require physical presence for
deliberations and voting on the appeal after conclusion of the hearing.
Discussion
KMC 14.20.290 provides that appeals from final decisions of the Planning & Zoning
Commission and administrative officials shall be heard by the Kenai City Council acting
as the Board of Adjustment. The Board of Adjustment is a quasi-judicial body; its role
and powers, its public hearings on administrative appeals, and its duty to make decisions
and issue written opinions are described in the "Opening Statement By Board Chair"
Mayor Porter and City Councilors
03 -12 -14
Page 2 of 4
prepared by City Attorney Scott Bloom for the most recent appeal, and in the example of
an appeal packet memo by our previous city attorney.
The parties to the appeal who appear before the Board of Adjustment have a due process
right to a fair and impartial hearing on the appeal.' The Board of Adjustment determines
the facts on the appeal from the testimony of the witnesses under oath and the material
that may be submitted timely to the City Clerk and admitted into evidence at the hearing.
New tangible evidence not timely submitted to the City Clerk will normally not be
admitted, but on occasion the Board has admitted new tangible evidence presented at the
hearing.
KMC 14.20.290 is silent as to whether or not a member of the Board of Adjustment can
participate in an appeal by telephone or other means when not physically present at the
hearing.2 The amendments proposed in this ordinance support the parties' due process
rights to a fair hearing on the appeal by requiring members of the Board of Adjustment to
be present in person at the hearing in order to participate in rendering a decision or voting
on the appeal. The parties and their attorneys can see and speak to the Board members
present in person, and the Board members present in person are best able to evaluate the
credibility of the parties, their other witnesses and the tangible evidence; to decide
whether or not to admit new tangible evidence presented for the first time at the hearing;
and to determine the facts, apply the law and vote on the decision.
This amendment does not require that Board members be physically present after
conclusion of the hearing. Once the hearing is concluded, the Board members who were
physically present at the hearing are the members who are entitled to deliberate and vote
on the Board's decision on appeal. Since they have heard the testimony and reviewed the
evidence, the Board members who were physically present at the hearing do not have to
be physically present thereafter for any or all deliberations of the Board or for voting on
the decision on appeal. Therefore, these amendments would not otherwise affect the
Board's procedures for deliberations and voting on the appeal.3
Your support of this ordinance is respectfully requested.
'If any party is aggrieved by the Board's decision, that party can appeal the Board's decision to the
superior court.
-KMC 1.15.130 Telephonic participation applies to Council meetings, not Board of Adjustment
hearings.
3 As stated in the attached "Opening Statement By Board Chair," the Board 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.
OPENING STATEMENT BY BOARD CHAIR
This Board of Adjustment Hearing will be conducted in compliance with the City of Kenai Code,
reasonable regulations of the Board and other applicable law. The Board of Adjustment is a
quasi-judicial board. The hearing is public and is being recorded. All persons presenting
evidence and testimony shall do so under oath, administered by the City Clerk. This hearing will
be conducted less formally with regard to rules of evidence and other court rules of procedure
then in a judicial courtroom.
This hearing before the Board is de -novo; the Board will review both the facts and law presented
during the hearing and submitted timely. New tangible evidence not timely submitted to the City
Clerk will normally not be admitted. All evidence considered in this matter should be in the
record before the Board as previously provided to the parties. The Appellant, or party applying to
the Board, has the burden of proof to show entitlement to relief.
Members of the public may have five minutes each to address the Board prior to the beginning of
the parties' presentations.
Each party will be allowed 30 minutes to present its case. During the parties presentation of the
case the parties may call witnesses. Cross examination will not be allowed during the parties'
presentation of the case. Any witness that testifies during the presentation of the case by either
party, unless excused by the Board with concurrence of the parties, must remain available to be
called during rebuttal, at which time cross examination may occur. Each party will be allowed 10
minutes for rebuttal. Any requested revision to this agenda or procedures by a party must be
made to the Board and approved by the Board immediately following the conclusion of this
statement.
Upon recognition by the Chair, board members may question the parties and their witnesses.
Questioning by the Board may take place at any time before the hearing is closed. Questioning
by the Board and responsive answers will not count against a party's time.
The Board requires a quorum of four and a majority of the quorum to make a decision. The
Board must issue a written decision within 30 days of the hearing date explaining its decision.
The Decision will indicate how each board member voted. The Board may reverse, remand or
affirm, wholly or in part, or may modify the order, requirement, decision or determination, as
ought to be made, and to that end shall have the powers of the body from whom the appeal is
taken.
The Board 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.
IM
""Villa ye with a Past, �c r-vitli .4 Futr�re"
9 �`
210 Fidalgo Avenue; Kena.i,.Aiaska 99611 -7794
Telephone: (907) 283 -7535 / FAX:.(907) 283 -3014
www.d.kenai.ak.us
TO: Mayor Pat Porter and City Council Members
FROM: Krista S. Stearns, City Attorney
DATE: September 29, 2009
RE: Administrative Appeals to the Board of Adjustment
The Board of Adjustment is a quasi-judicial body and is under a duty to act reasonably, impartially and
without an abuse of discretion. The hearing is public and is recorded. Since the hearing is not a judicial
hearing, it is more or less informal and not subject to strict judicial or technical rules of procedure or
evidence. The hearings are governed by the generally established rules of administrative procedure,
unless the city code provides otherwise. The general rule is that witnesses giving testimony should be
sworn in, by oath or affirmation, unless the Board waives the requirement for good cause.
The Board should not consider anything except the laws and facts relevant to whether the issue before it
warrants or requires the relief requested. It should not consider burdens or hardships arising out of deed
restrictions or plats since they are not grounds for relief from zoning restrictions.
The hearing before the Board is de -novo; the Board will review the matter (both the law and the facts)
independently without deferring to the decision of the Planning and Zoning Commission or city staff.
The Board can determine the facts from the proper testimony and material before it and may consider
facts learned by them from personal observation of the location in question and the surrounding
conditions. The Board may take into account community feeling in its decision, but community
opposition or support alone is not sufficient to grant or deny an appeal.
The party applying for relief to the Board has the burden of proof of facts entitling him to that relief.
Failure to prove an essential element to the application will defeat the application. The Board requires a
quorum of four and a majority of the quorum is required to reach a decision. The Board must issue a
written opinion within thirty (30) days of the hearing date explaining its decision. The decision must
indicate how each Board member voted. The Board may impose appropriate conditions and safeguards to
the permit. Any conditions must be reasonable and not arbitrary, unnecessary or oppressive. They must
be related to the proposed application and. its impact. Appeals of Board decisions to the Superior Court
may be made within thirty (30) days of the date distributed.
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