Chapter 18.54
AMENDMENTS, CHANGES AND PROCEDURES

Sections:

18.54.010    General procedures for rezoning, conditional uses and variances.

18.54.020    Procedures for rezonings.

18.54.025    Rezoning with special limitations.

18.54.027    Removal of special limitations.

18.54.030    Procedures for conditional uses.

18.54.040    Procedures for variances.

18.54.045    Procedures for highway project variances.

18.54.050    Procedures for amendments to this title.

18.54.060    Zoning permits.

18.54.070    Appeals.

18.54.010 General procedures for rezoning, conditional uses and variances.

A. Initiation. Applications for rezoning, conditional uses and variances shall be made and reviewed according to the following procedures:

1. The applicant shall complete and submit the application forms provided by the borough, along with the required processing fee, prior to the time and date established as the deadline for the planning commission meeting.

2. The department of community planning shall review the submitted request, and submit the recommendation and all other applicable information to the planning commission and borough assembly. The recommendation shall be based upon conformance to the comprehensive plan and public safety.

B. Public Hearing. Rezonings, conditional uses and variances shall become effective only after a public hearing has been held at which all interested parties and/or citizens shall have an opportunity to be heard, and at which approval has been recommended or granted by the members of the planning commission or borough assembly.

1. Publication of Notice. Notice of the time and place of the public hearing shall be published at least 10 days prior to the date of the hearing in a newspaper with general circulation in the jurisdiction of the planning commission and borough assembly.

2. Mailing of Notice by the Department of Community Planning. Notice of the public hearing shall be mailed to all owners, as shown by the records of the borough assessor, of property in the area to be considered for a rezoning, conditional use or variance. Notice shall be sent to owners of lots or land either within an area measured 500 feet in all directions from the boundaries of the area being considered if the request is of land within the incorporated areas of the cities of Fairbanks and North Pole, or within an area measured 1,000 feet in all directions from the boundaries of the area being considered if the request is of land outside of the incorporated areas of the cities of Fairbanks and North Pole. In either instance at least 10 owners of lots or land outside of the area being considered shall be notified by mail, whereby these distance requirements shall be increased.

3. Notice by Applicant. The applicant shall provide notice of the public hearing by posting the land subject to the application for a rezone, conditional use or variance with notice clearly legible from each improved street adjacent to the land, or as determined by the community planning director or his designee. All posted notices shall be in the standardized form provided by the department of community planning and shall be posted at least 20 calendar days prior to the date of the public hearing and remain until final action has been taken on the matter. Twenty days before the public hearing, the applicant shall submit to the department of community planning a signed affidavit that the notice was posted as required by this subsection and photographs of all posted notices. If a site inspection is conducted, staff will note in the staff report the presence or absence of the posted notice. The applicant shall remove the sign within 10 days following the public hearing.

C. Limitations. A proposed rezoning, conditional use or variance which has been denied by the planning commission and/or the borough assembly on a particular tract of land for a particular purpose cannot again be applied for within six months from the date of the denial, unless a new request is submitted that is determined to be substantially different from the original request (i.e., an application for a different but not necessarily a more restrictive zoning district, use, distance, area, etc.).

D. Public Hearings. Testimony shall be limited to matters dealing with public health, safety and general welfare. (Ord. 2002-11 § 2, 2002; Ord. 88-010 § 2, 1988)

18.54.020 Procedures for rezonings.

A. Initiation. The borough assembly may, from time to time, change the zoning of parcels of land within the borough. These changes in zoning classification shall be for the purpose of meeting the land use needs of the residents of the borough in conformance with the comprehensive plan. A change in zoning classification may be initiated by:

1. Any member of the borough assembly or the mayor;

2. Any person or persons; provided, that an application for rezoning is accompanied by a petition favoring the proposed rezoning signed by the owner or owners of at least 51 percent of the property within the area proposed to be rezoned. If any individual property owner owns more than 25 percent of the land area proposed to be rezoned, then the petition shall contain such property owner’s signature. Land owned by the state of Alaska or by the United States of America shall not be included in these computations.

B. Application for a Rezoning. Any member of the borough assembly or the mayor may initiate a rezone by preparation of a suitable ordinance and introduction of same to the borough assembly in accordance with assembly procedures. Any person or persons who wish to initiate a rezone shall complete and submit the application forms provided by the department of community planning along with all requested information. The written consent of the owner of the interest in the property to be rezoned, or an authorized representative having power of attorney, shall accompany all applications. The written consent of a holder of a security interest in the property does not need to be obtained. The application shall also include the following information:

1. The legal and common description of the property to be rezoned;

2. The property’s present and proposed zoning classification;

3. The recommendation for use of the property by the borough’s comprehensive plan;

4. The reasons for requesting the rezoning.

C. Public Hearing. The planning commission shall conduct public hearings on all proposed rezones, including rezones initiated by members of the borough assembly.

D. Hearing and Recommendation by the Planning Commission. The planning commission shall review, hear and recommend whether or not a request for rezoning should be approved. The planning commission shall consider all oral and written statements from the applicant, the public, the department of community planning, and its own members prior to making its recommendation. The planning commission shall also consider and adopt findings of fact demonstrating whether or not the proposed rezoning conforms to the comprehensive plan and to the public health, safety and welfare.

The planning commission shall recommend to the assembly one of the following actions:

1. Approve the rezoning request as submitted;

2. Approve the rezoning with special limitations;

3. Recommend an amendment to the request to a more appropriate zoning district; or

4. Disapprove the rezoning request.

E. Submission to the Borough Assembly. Within 30 days of the planning commission’s recommendation a report of said recommendation together with an ordinance shall be submitted to the borough assembly and a public hearing date shall be established.

F. Hearing and Determination by the Borough Assembly. The borough assembly shall review, hear and decide whether or not a request for rezoning shall be approved.

1. The assembly may approve a rezoning as submitted, or with special limitations approved by a majority of the votes cast by the planning commission members who voted on the rezone, or amend the request to a more appropriate zoning district.

2. The assembly may disapprove the rezoning or remand the request to the planning commission with instructions for its reconsideration. (Ord. 2005-31 § 2, 2005; amended during 2004 republication; Ord. 2000-

30 § 3, 2000: Ord 99-003 § 2, 1999; Ord. 94-088 §§ 3, 4, 1995; Ord. 88-070 § 7, 1988; Ord. 88-054 § 3, 1988; Ord. 88-010 § 2, 1988)

18.54.025 Rezoning with special limitations.

A. Subject to subsections (B) through (E) of this section, a rezoning may include special limitations that restrict structures, or the use of land or structures, to a greater degree than otherwise provided for in a use district. Special limitations shall be applied only to specific, well-defined projects with site development plans and to mitigate the adverse impacts of the projects and change in rezoning districts. Special limitations shall improve compatibility with the adjoining neighborhood or with the comprehensive plan, or promote the public health, safety, and welfare, including aesthetics. Rezones under this section shall not defeat the general intent of surrounding zones, nor constitute spot zones.

A rezone with special limitations shall become effective only upon the written consent of the owner of the property.

B. A rezoning may include special limitations for one or more of the following purposes:

1. To prohibit structures, or uses of land or structures, that would adversely affect the surrounding neighborhood or conflict with the comprehensive plan;

2. To conform the rezoning to the comprehensive plan, or to further the goals and policies of the comprehensive plan;

3. To conform development under the rezoning to existing patterns of development in the surrounding neighborhood;

4. To mitigate the adverse effects of development under the rezoning on the surrounding neighborhood and on public facilities and services;

5. To allow for innovation in design or use of land.

C. A special limitation shall do one or more of the following:

1. Limit residential density or prohibit structures or uses of land or structures otherwise permitted in a use district;

2. Require compliance with design standards for structures and other site features;

3. Require compliance with a site plan approved under this title;

4. Require the construction and installation of improvements, including public improvements; or

5. Impose time limits for taking subsequent development actions;

6. Impose time restrictions such as hours of operation or other additional numeric standards on permitted uses.

D. A use district subject to special limitations shall be identified on the zoning map by the suffix “SL,” and the number of the ordinance applying the special limitations shall be printed on the zoning map within the boundaries of the affected use district. A change to a special limitation shall be initiated in the same manner as a change in zoning classification.

E. Where a special limitation in a rezoning conflicts with any less restrictive provision of this title, the special limitation governs. (Ord. 2000-30 § 4, 2000)

18.54.027 Removal of special limitations.

A change to a special limitation may be initiated in the same manner as a change in zoning classification. A special limitation shall be removed when one or more of the following conditions are met:

A. Surrounding and/or neighboring properties have been rezoned to the same zoning district as the concerned property;

B. Prevailing use of surrounding properties no longer warrants imposition of a special limitation;

C. Use of the concerned property has changed thereby no longer warranting imposition of a special limitation;

D. Concerned property is rezoned to another zoning district;

E. The owner proposes a different special limitation that improves compatibility with the adjoining neighborhood or promotes the public health, safety, and welfare to the same extent as the original limitation. (Ord. 2000-30 § 5, 2000)

18.54.030 Procedures for conditional uses.

A. Generally. The development and execution of this title is based upon the division of the borough into districts. It is recognized, however, that there are conditional uses which, because of their unique character and special and unusual impact upon the use of adjacent property, cannot be properly classified in any particular district or districts without consideration, in each case, of the impact of those uses upon adjacent property and upon the public need for the particular use in a particular location. Conditional uses are those operated by a public agency or public utility or uses traditionally associated with the public interest, or uses entirely private in nature but of such a character that their operation may give rise to unique problems with respect to their impact upon adjacent property or public facilities.

B. Application for a Conditional Use. An applicant for a conditional use shall complete and submit the approved application form in accordance with the procedures established herein. The applicant shall be the owner of the property described on the application, the contract purchaser of said property, the holder of an option to purchase said property, or such persons that possess a substantial proprietary interest in the property being considered. The written consent of the owner, or an authorized representative having power of attorney, shall accompany all applications. The written consent of a holder of a security interest in the property does not need to be obtained. The application shall also include the following information:

1. The legal and common description of the property to be considered for a conditional use;

2. The conditional use requested and the reasons for requesting it;

3. The property’s present zoning classification;

4. A site plan showing the subject property and its dimensions;

5. The use, location, size and height of all existing and proposed buildings and structures on the subject property;

6. Where applicable, the location of all existing and proposed curbcuts, driveways, off-street parking spaces and loading areas, traffic circulation patterns, street and right-of-way width, sidewalks, landscaping, screening, open space areas, signage, lighting and other related matters.

C. Public Hearing. No conditional use request shall be approved until a public hearing has been held thereon by the planning commission in accordance with the procedures established herein.

D. Hearing and Decision by the Planning Commission. The planning commission shall review, hear and decide whether or not to approve a request for a conditional use. In its deliberations, the planning commission shall consider all oral and written statements from the applicant, the public and the department of community planning. The planning commission shall also consider and adopt findings in each of the following:

1. Whether or not the proposed conditional use conforms to the intent and purpose of this title and of other ordinances and state statutes;

2. Whether or not the proposed conditional use is in the interest of the applicant;

3. Whether or not there are adequate existing sewage capacities, transportation facilities, energy and water supplies, and other public services to serve the proposed conditional use;

4. Whether or not the proposed conditional use will protect the public health, safety and welfare.

The planning commission may approve or deny a conditional use request or may approve a conditional use request with conditions to ensure the protection of the public health, safety and welfare. Such conditions may relate to any, or more, of the following: traffic flow and access requirements, lighting, pedestrian movements.

E. Application to Amend a Conditional Use. An owner of a property for which a conditional use has been permitted, the contract purchaser of said property, the holder of an option to purchase said property, or such persons that possess a substantial proprietary interest in said property may apply for amendment of the conditional use relating to said property. An application for amendment of a conditional use shall be processed in the same manner as an application for a conditional use and shall be governed by the procedures set out in this chapter.

F. Application to Amend Conditional Use for a Planned Unit Development. A conditional use for a planned unit development granted under this or a former title may be amended as provided for in subsection (E) of this section. (Ord. 97-014 § 2, 1997; Ord. 88-010 § 2, 1988)

18.54.040 Procedures for variances.

A. Generally. The planning commission may allow a departure from the numerical regulations of this title pertaining to the size of yards and open space areas, building height and size, lot area, number and location of off-street parking spaces and loading areas, and other matters pertaining to the operation and construction of permitted uses.

1. Situations where variances may be granted include, but are not limited to: exceptional narrowness, shallowness or shape of a specific piece of property at the time of the adoption of the ordinance codified in this title; exceptional topographic conditions; other extraordinary or exceptional situations or conditions of a specific piece of property; or because of existing situations or conditions that are generally prevalent in the immediate area that create a character similar to what would occur as a result of an approval of the request for a variance; or where the strict application of this title would result in a peculiar, exceptional and undue hardship, upon the owner of such property.

B. Application for a Variance. An applicant for a variance shall complete and submit the approved application form in accordance with the procedures established herein. The applicant shall be the owner of the property described by the application, the contract purchaser of said property, the holder of an option to purchase said property, or such persons that possess a substantial proprietary interest in the property being considered. The written consent of the owner, or an authorized representative having power of attorney, shall accompany all applications. The written consent of a holder of a security interest in the property does not need to be obtained.

1. An application for variance must meet the following standards:

a. Special conditions exist which are peculiar to the land involved and which are not applicable to other land in the same zoning district;

b. Strict interpretation of the provision of the zoning title would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of the zoning title.

2. The application shall also include the following information:

a. The legal and common description of the property on which the variance is to be considered;

b. The variance requested, and the reasons for the request;

c. The property’s present zoning classification;

d. A site plan showing the subject property and its dimensions.

C. Public Hearing. No variance request shall be approved until a public hearing has been held thereon by the planning commission in accordance with the procedures established herein.

D. Hearing and Decision by the Planning Commission. The planning commission shall review, hear and decide whether or not to approve a request for a variance. In deliberations, the planning commission shall consider all oral and written statements from the applicant, the public and the department of community planning. The planning commission shall also consider and adopt findings in each of the following:

1. Whether or not the proposed variance conforms to the intent and purpose of this title and of other ordinances and state statutes;

2. Whether or not the denial of the proposed variance will deprive the applicant the use of his/her property in a manner equivalent to the use permitted to be made by the owners of property in the immediate area;

3. Whether or not the proposed variance will protect the public health, safety and welfare, traffic and parking conditions from danger of fire.

The planning commission may approve or deny a variance request or may approve a variance request with conditions upon the property benefitted by the variance as may be necessary to comply with the standards set forth in this title to ensure consistency with the general intent of this title. (Ord. 88-010 § 2, 1988)

18.54.045 Procedures for highway project variances.

A. Generally. The planning commission may allow a departure from the numerical standards of this title pertaining to the size of yards and open space areas, building height and size, lot area, number and location of off-street parking spaces and loading areas, and other matters. Highway project variances must be a direct result of right-of-way acquisition.

B. Application for a Highway Project Variance.

1. An applicant for a highway project variance shall complete and submit an application form provided by the borough. The applicant shall be the owner of the property described in the application, the contract purchaser, the holder of an option to purchase, or a person who possesses a substantial proprietary interest, or an entity with public interest in said property. The written consent of the owner or holder of a security interest in the property shall not be required as part of the application. If the highway project variance is granted, written consent of the property owner or authorized representative having power of attorney shall be required as a condition of approval;

2. An application for highway project variance shall be evaluated by the following criteria:

a. Whether special conditions exist which are peculiar to the property involved and which are not applicable to other property in the same zoning district, and

b. Whether strict interpretation of this title would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district;

3. The application shall include the following information:

a. The legal and common description of the property on which the highway project variance is to be considered,

b. The type of variance requested, amount requested, and the reasons for the request,

c. The property’s present zoning classification,

d. A site plan showing:

i. The subject property and its dimensions,

ii. Structures before and after right-of-way take and distances of structures from all property lines including old and new right-of-way lines,

e. Amount of right-of-way take from the subject lot,

f. Amount remaining to the subject lot after right-of-way take,

g. Letter from Alaska Department of Environmental Conservation specific to each lot, with conditions, if applicable, regarding development suitability.

C. Notification Requirements. Notification requirements shall be as specified in FNSBC 18.54.010.

D. Hearing and Decision Process.

1. Variance Requests Not Greater Than 10 Percent. If the director of community planning determines no extraordinary circumstances exist, highway project variances which depart from the numerical standards of this title by not greater than 10 percent shall appear on the consent agenda of the planning commission. Affected property owners may address the variance application during the citizen’s comments portion of the agenda. The planning commission may remove the item from the consent agenda and may approve, approve with conditions, or deny the highway project variance. The planning commission may also refer the application to a full review including public hearing in accordance with procedures outlined for highway project variances greater than 10 percent.

If the director of community planning determines extraordinary circumstances do exist, the highway project variance will appear as a regular agenda item scheduled for public hearing in accordance with procedures outlined for highway project variance greater than 10 percent.

2. Variance Requests Greater Than 10 Percent. Departures of greater than 10 percent from the numerical standards shall be considered by the planning commission in a public hearing. The planning commission shall consider all oral and written statements from the applicant, the public and the department of community planning.

E. The planning commission shall also consider and adopt findings of fact in each of the following:

1. Whether the proposed variance conforms to the intent and purpose of this title and of other ordinances and Alaska Statutes;

2. Whether the denial of the proposed variance will deprive the property owner of the use of property in a manner similar to the use permitted to be made by the owners of property in the immediate area; and

3. Whether the proposed variance will adversely affect the public health, safety, and welfare, traffic or parking conditions, or increase the danger of fire.

The planning commission may approve or deny a highway project variance request or approve the request with conditions. (Ord. 92-023 § 2, 1992)

18.54.050 Procedures for amendments to this title.

A. Initiation. Amendment to this title may be initiated by the borough assembly, planning commission. An amendment to this title involves changes in its text and wording, including but not limited to changes in the regulations regarding uses, setbacks, heights, lot areas, definitions, administration and/or procedures.

B. Application for an Amendment to this Title. An amendment to this title may be initiated by any member of the borough assembly by preparation of an appropriate title and introduction and enactment of same in accordance with assembly procedures. An application for an amendment of this title initiated by the planning commission shall be made by the completion and submission of the appropriate application forms provided by the department of community planning.

C. Review and Decision by the Borough Assembly. The borough assembly shall review, study and decide whether or not to adopt a proposed amendment to this title.

D. Limitations, Amendments and Revisions. The borough assembly may approve the proposed amendment, deny it or refer it back to the planning commission for further review and consideration. If approved, the department of community planning shall revise this title accordingly. (Ord. 88-010 § 2, 1988)

18.54.060 Zoning permits.

A. Generally. The requirement of obtaining a zoning permit is deemed necessary and appropriate. A review of the zoning permit application ensures the development’s conformance with the regulations and provisions of this title and other ordinances.

B. Requirements. Before any excavation, construction, relocation or installation is started for a new use, a zoning permit shall be obtained by the owner, or his/her authorized representative, of any land in both the incorporated and unincorporated areas of the borough. The zoning permit application shall include the necessary information and be submitted in accordance with the standards and procedures as adopted by the borough and as required in this title and other ordinances.

1. Except for conditional uses, changes made to any land or use in the GU-1 district and outside any designated special landscape area overlay zone do not require a zoning permit.

2. The clearing or grading of a lot does not require a zoning permit.

3. Construction activities as described in Section 301(b) of the Uniform Building Code do not require a zoning permit.

C. Issuance. The department of community planning shall complete the review of a zoning permit application within five business days of the time of submission, or within 15 business days of the time of submission if the property is located in the special landscape area. The department shall not approve a zoning permit application until it is satisfied that the proposed development meets the regulations and provisions of this title and other ordinances. A zoning permit shall not be issued for property located within the special landscape area unless a preliminary landscape plan is submitted, approved, and a performance bond or other guaranty is obtained in accordance with FNSBC 18.48.110(F). If approved, the department shall issue the zoning permit allowing construction to commence.

D. Any applicant denied a zoning permit due to noncompliance of the landscaping requirements may appeal to the landscape review board. The appeal shall be made in writing and submitted within one week upon rejection of the zoning permit. If an applicant, owner or developer wishes to appeal a decision of the landscape review board, they shall appeal to the board of adjustment using the appeal procedure and process provided in this title. In addition to the other requirements of an appeal under this title, the appeal shall be accompanied by a copy of the submitted landscape design. (Ord. 2007-04 § 4, 2007; Ord. 88-010 § 2, 1988)

18.54.070 Appeals.

A. Initiation of Appeal. Decisions may be appealed to the board of adjustment or a hearing officer by:

1. An applicant for a conditional use or variance;

2. Any governmental agency or unit;

3. Any person aggrieved by a decision or determination made by the director of the department of community planning in the enforcement of this title, or by a decision of the planning commission concerning a request for conditional use or variance. To be considered a “person aggrieved,” the person must present proof of the adverse effect the decision has or could have on the use, enjoyment, or value of his own property. The decision appealed from must personally affect a matter in which the person has a specific interest or property right in a way different from that of the general public. A request for variance from the terms of the land use regulations may be appealed when literal enforcement would deprive a property owner of rights commonly enjoyed by other properties in the district.

B. Appellees.

1. In the event a decision is appealed as provided in subsection (A) of this section, an appellee brief may be filed as provided in subsection (F)(2) of this section by:

a. The party in whose favor the lower administrative body’s decision was rendered;

b. Any borough agency;

c. Any person who would be aggrieved if the decision of the lower administrative body were reversed.

2. Appellees who wish to be notified by the clerk’s office of the date the record is available and of the date the appellant’s brief is filed must file a notice of intent to file a brief with the clerk’s office on a form prescribed by the borough clerk, within 20 days after the decision of the lower administrative body from which the appeal is taken.

C. Notice of Appeal. An appeal must be perfected no later than 15 days after the decision of the administrative body from which the appeal is taken. The appeal is perfected by the filing of a notice of appeal, appeal fee and cost bond in accordance with this subsection.

1. The notice of appeal must be filed with the borough clerk on a form prescribed by the borough clerk and must contain detailed and specific allegations of error.

2. The appellant shall pay a nonrefundable appeal fee of $75.00. In addition, the appellant shall file a cost bond of $200.00. Following completion of the record, the appellant shall pay the actual cost of the record. However, should the decision of the lower body be reversed in whole or in part, the cost bond shall be refunded in full.

3. An untimely notice of appeal or a notice of appeal which does not conform with the requirements of this subsection shall be denied. No further proceedings shall be made on a defective notice of appeal unless the defect is corrected within the period provided for an appeal.

D. New Evidence – Changed Circumstances. Appeals alleging new evidence or changed circumstances shall not be heard by the board of adjustment or hearing officer but shall be remanded forthwith by the clerk to the lower administrative body, which shall determine whether to rehear the matter.

E. Preparation of Record.

1. Upon timely perfection of an appeal, the borough clerk shall prepare an appeal record. The record shall contain:

a. A verbatim transcript of any proceedings before the administrative body from which the appeal has been taken prepared in accordance with subsection (E)(2) of this section;

b. Copies of all documentary evidence, memoranda and exhibits, correspondence and other written material submitted to the administrative body prior to the decision from which the appeal is taken;

c. A copy of the written decision of the administrative body, including its findings and conclusions.

2. The appellant shall arrange for the preparation of the transcript by a court reporter and shall pay the cost of such preparation. The appellant shall file this transcript with the borough clerk. If the appellant fails to file the transcript within 30 days of the filing of the notice of appeal, the appeal shall be automatically denied.

3. Upon completion of the record, the clerk shall notify the appellant by certified mail of the cost of its preparation. If the appellant fails to pay the costs within seven days of receiving the notice, the appeal shall be automatically denied. Upon timely payment of costs, the clerk shall, by certified mail, serve a copy of the record on the appellant. The clerk shall also notify by certified mail the appellees who have filed a notice of intent to file a brief that the record is available for pickup and the date the record was mailed to the appellant. Upon request, the clerk shall provide a copy of the record to an appellee or the public.

F. Written Argument.

1. Brief of the Appellant. The appellant may file a written brief of points and authorities in support of those allegations of error specified in the notice of appeal with the clerk’s office not later than 15 days after mailing of the appeal record. The clerk shall deliver a copy of the appellant’s brief to the borough staff assigned responsibility for the appeal. The clerk shall also notify by certified mail those appellees who have filed a notice of intent to file a brief that the appellant’s brief is available for pickup. Upon request, the clerk shall provide a copy of the appellant’s brief to appellees.

2. Brief of Appellee. The borough staff shall prepare and submit to the clerk a written reply to the notice of appeal and any brief in support thereof no later than 30 days after mailing of the appeal record. An appellee who has filed a notice of intent to file brief may also file with the clerk’s office a written reply to the notice of points on appeal and any brief in support thereof no later than 30 days after the mailing of the appeal record. The clerk shall notify the appellant by certified mail that appellee briefs have been filed.

3. Reply Brief. An appellant may file a written reply brief to the appellee briefs no later than 10 days after mailing of notice that the appellee briefs have been filed.

4. Form of Briefs. All briefs shall be typewritten on eight and one-half by 11-inch pages. The text of the brief shall be double-spaced other than quotations from the record, case law, or other applicable law or exhibits which cannot be retyped on eight and one-half by 11-inch pages. The brief of the appellant is limited to 25 pages exclusive of exhibits. The brief of appellee is limited to 25 pages exclusive of exhibits. The reply brief is limited to 10 pages exclusive of exhibits. The clerk shall not accept a brief unless it is in the form prescribed by this subsection.

5. Untimely Briefs. If a brief is not filed within the time prescribed by this section, the clerk shall notify the board of adjustment or hearing officer that the brief was filed late. The board or hearing officer shall determine whether to accept a late brief and whether to allow additional time for any qualified opposing party to file its brief.

G. Appeal Packet – Notice of Hearing. Following the time set for the receipt of written argument from the appellant, appellee and the borough staff, the clerk shall prepare and distribute to the board members or hearing officer an appeal packet containing only the notice of appeal, the appeal record and any briefs filed in accordance with subsection (F) of this section. Following distribution of the packets, a date shall be set for consideration of the appeal. Notice of consideration on the appeal shall be published in a newspaper of general circulation and shall be served by mail on the appellant and those appellees who have submitted briefs. Appeal packets shall be made available to the public upon demand.

H. Appeal Hearing. The meeting at which the board deliberates and decides an appeal shall be open to the public and a record of the hearing shall be made. The board or hearing officer shall not hear arguments nor take additional testimony or other evidence. Only the material contained in the appeal packet shall be considered.

I. Scope of Administrative Review.

1. An appeal shall be heard solely on the basis of the record established before the lower administrative body, the notice of appeal, appellant’s argument and the reply thereto.

2. The board of adjustment or hearing officer may exercise its independent judgment on legal issues raised by the appellant. Legal issues as used in this subsection are those matters that relate to the interpretation or construction of ordinances or other provisions of law.

3. The board of adjustment or hearing officer shall, unless it substitutes its independent judgment pursuant to subsection (I)(4) of this section, defer to the judgment of the lower administrative body regarding disputed issues or findings of fact. Findings of fact adopted expressly or by necessary implication by the lower administrative body may be considered as true if they are supported in the record by substantial evidence. Substantial evidence for the purpose of this subsection means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. If the record affords a substantial basis of fact from which the fact in issue may be reasonably inferred, it shall be considered that the fact is supported by substantial evidence.

4. Notwithstanding the provisions of subsection (I)(3) of this section, the board of adjustment, by an affirmative vote of two-thirds of the fully constituted board, or the hearing officer, may substitute its independent judgment for that of the lower administrative body on any disputed issues or findings of fact. The judgment must be supported on the record by substantial evidence. For the purpose of this subsection, the fully constituted board of adjustment shall not include those members who do not participate in the appeal.

J. Decision.

1. The board of adjustment or hearing officer may affirm or reverse the decision of the lower administrative body in whole or in part. It shall decide an appeal on the basis of the record on appeal and the briefs of the parties to the appeal, in accordance with the standards of subsection (I) of this section. A majority vote of the fully constituted board is required to reverse or modify the decision appealed from. For the purpose of this subsection, the fully constituted board shall not include those members who do not participate in the appeal. Where an appeal has been referred to a hearing officer, the hearing officer alone shall decide the appeal. A decision reversing or modifying the decision appealed from shall be in a form which finally disposes of the case on appeal except where the case is remanded in accordance with subsection (K) of this section.

2. Every decision to affirm or reverse the decision of the lower administrative body shall be based upon findings and conclusions adopted by the board or hearing officer. Such findings must be reasonably specific so as to provide the community, and where appropriate, reviewing authorities, a clear and precise understanding of the reason for the decision. The board may seek the assistance of the borough attorney in the preparation of findings.

K. Remedies.

1. Where the board of adjustment or hearing officer reverses or modifies a decision of the lower administrative body in whole or in part, its decision shall finally dispose of the matter on appeal, except that the case shall be remanded to the lower body where it determines either:

a. That there is insufficient evidence in the record on an issue material to the decision of the case; or

b. That there has been a substantial procedural error which requires further public hearing.

2. A decision remanding a case shall describe any issue upon which further evidence should be taken, and shall set forth any further directions the board or hearing officer deems appropriate for the guidance of the lower administrative body.

3. The lower administrative body shall act on the case upon remand in accordance with the decision of the board of adjustment or hearing officer in the minimum time allowed by the circumstances.

L. Special Rules of Procedure Applicable to Appeal Hearings Before the Board of Adjustment or Hearing Officer.

1. Ex Parte Contacts Prohibited. Board members and the hearing officer shall be impartial in all appeal matters, both in fact and in appearance. No board member or hearing officer shall receive or otherwise engage in ex parte contacts with the appellant, other parties adversely affected by the appeal, or members of the public concerning the appeal or issues specifically presented in the notice of appeal either before the appeal hearing or during any period of time the matter is subject to reconsideration.

2. Decisions of the board of adjustment or hearing officer may be brought up for reconsideration or rehearing only if:

a. There was substantial procedural error in the original proceeding; or

b. The board or hearing officer acted without jurisdiction in the original proceeding; or

c. The original decision was based upon fraud or misrepresentation.

The appellant or appellee may seek reconsideration or a rehearing by filing a request with the borough clerk, together with materials supporting one or more of the grounds stated above, within 15 days of the original decision. The board, by majority vote, or hearing officer may schedule a rehearing only if it finds the allegations to be correct. A rehearing shall be conducted in the same manner as original proceedings.

M. Judicial Review. Either the appellant or appellee may appeal the decision of the board of adjustment or hearing officer to the superior court. Appeals shall be made in accordance with the Alaska Rules of Civil Procedure. (Ord. 94-003 § 2, 1994)