Chapter 16.90
APPEALS TO THE ASSEMBLY

Sections:

16.90.010    Reconsideration.

16.90.020    Persons who may appeal.

16.90.030    Commencement of appeal – Stay.

16.90.040    New evidence – Changed circumstances.

16.90.050    Appeal hearing – Notice – Preparation of record.

16.90.060    Argument on appeal.

16.90.070    Appeal hearing.

16.90.080    Scope of appellate review.

16.90.090    Decision.

16.90.100    Hearing examiner.

16.90.110    Judicial review.

16.90.010 Reconsideration.

A. The commission may reconsider its decision upon petition of any person entitled to appeal the decision under KIBC 16.90.020, filed with the community development department within 10 working days after the decision, or the veto of a vacation where reconsideration is allowed under KIBC 16.60.060(B).

B. The commission may reconsider its decision only if it finds:

1. There was a clerical error in the decision;

2. The decision resulted from fraud or mistake; or

3. There is newly discovered evidence or a change in circumstances which by due diligence could not have been discovered before the original hearing.

C. The community development department shall mail notice of the petition for reconsideration to each person who was entitled to notice of the original commission proceeding. The notice shall include the petition for reconsideration, describe the decision upon which reconsideration is requested, and state the date and time when the commission will review the petition.

D. The commission shall review the petition at its next regular meeting and decide whether to reconsider the matter. The decision shall be based on the petition and any oral argument of the petitioner or any other interested party which the commission may decide to hear, but no additional evidence shall be taken. If the petition is granted, then the commission shall decide the matter or set the matter on its agenda for rehearing. The decision of the commission on reconsideration shall be final, subject to appeal, and the commission shall entertain no further petitions for reconsideration of the decision at issue. [Ord. 90-15 §2, 1990].

16.90.020 Persons who may appeal.

A written decision of the commission granting or denying approval of a plat or a waiver from the requirements of this title may be appealed by:

A. The applicant; or

B. Any person who was sent a written notice or submitted timely written comments or gave oral testimony at the public hearing before the commission. [Ord. 90-15 §2, 1990].

16.90.030 Commencement of appeal – Stay.

A. A decision of the commission is final unless an appeal of the decision is made within 10 working days after the decision by the commission to the assembly.

B. An appeal is commenced by filing with the clerk a written notice of appeal, specifically stating the reasons for the appeal and the relief sought, and payment of the appropriate fee as set by resolution of the assembly. Upon commencement of an appeal, the decision appealed from is stayed until the decision on appeal becomes final.

C. The running of the time for filing an appeal from a decision of the commission is terminated by a timely petition for reconsideration, filed in accordance with KIBC 16.90.010. The full time for an appeal begins to run again on the date of the decision of the commission on reconsideration. [Ord. 90-15 §2, 1990].

16.90.040 New evidence – Changed circumstances.

Appeals alleging new evidence or changed circumstances may be remanded by the assembly to the commission where they shall be treated as petitions for reconsideration. The assembly is not required to remand such an appeal if the new evidence or changed circumstances are immaterial or if the appeal can be decided on independent legal grounds. [Ord. 90-15 §2, 1990].

16.90.050 Appeal hearing – Notice – Preparation of record.

A. Upon timely commencement of an appeal, the clerk shall schedule the appeal hearing, mail notice of the appeal, request the community development department director to prepare the appeal record, and notify the commission of the appeal.

B. The clerk shall mail notice of the appeal to each person who was entitled to notice of the original commission proceeding. The notice shall include the appellant’s notice of appeal, describe the decision appealed from, state the date of the appeal hearing and time within which written argument supporting or opposing the appeal may be submitted, and contain the substance of subsections C and E of this section regarding the obtaining of a verbatim transcript and the availability of the appeal record.

C. The appeal record shall be completed within 10 working days of filing of appeal. The appeal record shall include the draft minutes of the proceedings before the commission, the commission’s written decision, and any written documents considered by the commission. Any party to an appeal from a commission decision may cause the appeal record to include a verbatim transcript of the proceedings before the commission by filing a request therefor, accompanied by a cash deposit in the amount of the estimated cost of preparing the transcript. Within 10 working days of notice of completion of the transcript, the person requesting it shall pay the actual cost thereof or the deposit shall be forfeited to the borough. A request by the borough for a transcript is not subject to the deposit or refund provisions of this subsection. The borough shall bear the cost of preparing the remainder of the record.

D. Following completion of the record, the clerk shall, by certified mail, serve a copy of the appeal record on the appellant, the applicant, and on any party who paid for the preparation of a verbatim transcript as part of the record. The clerk shall deliver a copy of the appeal record to the borough staff assigned responsibility for the appeal.

E. A copy of the appeal record shall be available for public inspection at the clerk’s office. Any person may obtain a copy of the record upon payment of the appropriate fee. [Ord. 90-15 §2, 1990].

16.90.060 Argument on appeal.

On appeal to the assembly, any person who meets the requirements of KIBC 16.90.020 may submit to the clerk written argument supporting or opposing the appeal. Written argument submitted prior to the appeal hearing shall become part of the appeal record. [Ord. 90-15 §2, 1990].

16.90.070 Appeal hearing.

A. The assembly shall hold an appeal hearing on the appeal at its first regular meeting, 30 days after the appeal record has been completed.

B. At the hearing before the assembly, only persons who have submitted written argument on the appeal or testified before the commission, or submitted written comments to the commission, may present oral argument. Oral argument shall be subject to the following order and time limitations, unless the assembly, for good cause shown, permits a change in the order or an enlargement of time:

1. Borough staff, including commission representatives: 10 minutes to present the decision below and to set forth the evidence and reasons relied upon for the decision;

2. Appellant: 10 minutes;

3. Private person supporting the appeal: 10 minutes each;

4. Private person opposing the appeal: 10 minutes each; and

5. Appellant, for rebuttal: 10 minutes.

C. Failure to observe the above procedures in a hearing shall not affect the validity of the decision so long as the appellant has had a reasonable opportunity to be heard.

D. The assembly shall decide the appeal upon the appeal record and the written and oral argument presented on the appeal. [Ord. 90-15 §2, 1990].

16.90.080 Scope of appellate review.

A. The assembly may exercise its independent judgment on legal issues raised by the appellant. Legal issues are those matters that relate to the interpretation or construction of an ordinance or other provisions of law.

B. The assembly shall defer to the judgment of the commission regarding disputed issues of fact. Findings of fact adopted expressly or by necessary implication shall be considered as true if, based upon a review of the whole record, they are supported by substantial evidence. “Substantial evidence” means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. If the record as a whole affords a substantial basis of fact from which the fact in issue may be reasonably inferred, the fact is supported by substantial evidence. [Ord. 90-15 §2, 1990].

16.90.090 Decision.

A. The assembly shall either affirm or reverse the decision of the commission in whole or in part. If the assembly fails to approve the reversal of the commission’s decision, that decision is affirmed. Where the assembly decides that a finding of fact by the commission is not supported by substantial evidence, it shall make its own finding on the factual issue based upon the evidence in the record.

B. Every decision of the assembly to affirm or reverse an action of the commission shall be based upon findings and conclusions adopted by the assembly. 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.

C. The assembly’s decision affirming or reversing the decision of the commission shall be mailed to the parties to the appeal within 10 working days after the appeal decision and approval of findings of fact. [Ord. 90-15 §2, 1990].

16.90.100 Hearing examiner.

Where the subdivider is the borough or a municipality, the appeal shall be heard and decided upon by a hearing examiner. The clerk shall refer the appeal to the Alaska Office of Administrative Hearings under AS 44.64.030(b). In rendering a decision, the hearing examiner shall follow the rules and procedures as set forth in the preceding sections of this chapter. [Ord. FY2010-09 §2, 2010; Ord. 90-15 §2, 1990].

16.90.110 Judicial review.

Any person aggrieved by a final decision of the assembly under this chapter may appeal that decision to the superior court. An appeal to superior court shall be heard solely on the record before the assembly or its hearing examiner and the commission. The appeal procedure shall be governed by the rules set forth in Part Six of the Rules of Appellate Procedure of the state of Alaska. The findings of the assembly shall not be reversed if in light of the whole record they are supported by substantial evidence. [Ord. 90-15 §2, 1990].