Chapter 20.80
APPEALS

Sections:

20.80.010    Board of adjustment appeals.

20.80.010 Board of adjustment appeals.

A. The board of adjustment shall hear and decide:

1. Appeals from decisions of the planning commission regarding administrative decisions of borough employees made in the enforcement, administration or application of this title.

2. Appeals from decisions of the planning commission on requests for conditional uses.

3. Appeals from a decision of the planning commission on a request for a variance from the terms of this title.

B. In exercising the above-mentioned powers, the board of adjustment may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed and may make such order, requirement, decision or determination as deemed necessary to implement its decision. The board of adjustment shall have all the powers of the planning commission or administrator who made the original decision.

C. Time for Appeal.

1. All appeals shall be filed in writing with the clerk no later than 15 days after the date of the decision; provided, however, if the clerk determines that a notice of appeal filed within such 15-day period is incomplete or lacking in sufficient detail, the clerk shall notify the appellant in writing at the address indicated in the notice of appeal specifying the deficiencies or by hand delivery to the appellant. The appellant shall have an additional 10 days from the date such notice is mailed or hand delivered to correct such deficiencies by filing a supplement to the notice of appeal correcting such deficiencies or adding additional information.

2. Any appeal filed after the time provided above shall not be considered by the board of adjustment.

3. Upon such notice of appeal having been duly filed, the clerk shall send a copy to the zoning administrator and the planning commission, together with a written request for all records and transcripts, including the written decision and/or resolution of the planning commission granting or denying the application. The zoning administrator shall, within 10 days after having received a copy of the appeal and request from the clerk, certify and deliver the records, transcripts and documents of the planning commission to the clerk of the board of adjustment.

4. An appeal to the board of adjustment stays enforcement proceedings unless the board or a court issues an order otherwise for good cause shown.

5. The board of adjustment shall hear and decide appeals on the record certified by the planning commission to the clerk. The board of adjustment shall consider at a public meeting all appeals not later than 30 days following the date the certified record specified in subsection (C)(3) of this section is delivered to the clerk of the board of adjustment; provided, however, the date for the public meeting may be continued for a period not to exceed an aggregate total of 30 additional days as follows:

a. By the clerk upon the clerk’s determination there is a lack of a quorum.

b. Upon written request for a continuance by the appellant, submitted not less than three days prior to the scheduled session, or for other good cause shown.

6. At least 10 days’ notice of the time and place of the public meeting shall be published in a newspaper of general circulation in the borough. In addition, at least 10 days’ written notice of the time and place of the public meeting shall be given to the appellant(s) and affected property owners or possessors, as such is determined within this title.

7. The board of adjustment shall render a decision as set forth in subsection (B) of this section. The board of adjustment may provide an opportunity to hear a limited summary of the appeal and may question the appellant, the zoning administrator and interested parties who appeared before the planning commission about the appeal; however, evidence not previously before the planning commission will not be heard or made a part of the board of adjustment record. The decisions of the board of adjustment shall be by motion and the vote shall be taken by roll call. A majority vote in the affirmative for the motion by the members present at a hearing in which a quorum is present adopts any motion. Following adoption of the motion, the members voting on the prevailing side of the motion shall, with the presiding officers, develop formal specific findings of fact which support the decision and which shall be deemed part of the final decision and permanently entered in the record of the appeal proceedings.

8. The adoption of the motion and entry of the findings of fact constitute the final decision of the board of adjustment, and the date of the entry of the findings of fact constitutes the date of the final decision of the board of adjustment. The clerk of the board of adjustment shall, not later than 10 days of the date of the final decision, certify the motion to the zoning administrator and planning commission. In addition, a certified copy of the motion shall immediately be mailed to the appellant(s) by certified mail, return receipt requested, or hand delivered. The appellant shall be informed of the right of appeal as set forth in subsection (E) of this section.

9. If the board of adjustment fails within 30 days after the date on which the hearing of the appeal is closed to affirmatively reverse, affirm, modify or remand the decision of the planning commission, the decision of the administrative official or planning commission shall be deemed to be upheld and affirmed.

D. Procedure of the Board of Adjustment.

1. The assembly is the board of adjustment. Meetings of the board are held at the call of the presiding officer. The presiding officer may administer oaths and compel attendance of witnesses. Meetings and hearings of the board shall be open to the public, and the board shall keep minutes of its proceedings showing its decision, the reasons for its decision, and the vote of each member upon each question. The minutes shall be public records.

2. The owner of the property, a borough officer or any party with ownership or possessory interest in property located within the borough may file with the board of adjustment a notice of appeal specifying in detail such person’s objections to the action appealed from. All such appeals shall be filed in writing with the borough clerk, who is the clerk of the board of adjustment, and shall contain all of the following information:

a. Name, address and telephone number of the appellant;

b. A statement indicating the appellant’s standing in the matter;

c. A description of the action appealed from, including property descriptions;

d. A specific and detailed statement of the basis and grounds upon which the appeal is made; and

e. A statement of the relief sought.

Grounds upon which the board of adjustment may grant an appeal are (i) a procedural error, (ii) an error in the application of the pertinent law, (iii) lack of evidence to support findings and conclusions, or (iv) misrepresentation of a fact.

E. Judicial Review. The owner of the property, a municipal officer or any party with ownership or possessory interest in property located within the borough may appeal an action of the board of adjustment to the superior court in the manner provided by Rule 602 of the Rules of the Appellate Procedure of the State of Alaska. [Ord. 867 § 1, 2013; Ord. 761 § 6, 2004.]