Chapter 17.225
APPEALS TO THE BOARD OF ADJUSTMENT

Sections:

17.225.010    Organization.

17.225.020    Powers of the board.

17.225.030    Persons who may appeal.

17.225.040    New evidence – Changed circumstances.

17.225.050    Appeal hearing – Notice, preparation of record.

17.225.060    Argument on appeal.

17.225.070    Appeal hearing.

17.225.080    Decision.

17.225.090    Hearing examiner.

17.225.100    Judicial review.

17.225.010 Organization.

The assembly is the board of adjustment for the Kodiak Island Borough. [Ord. 96-23 §2, 1996; Ord. 90-44 §6, 1991. Formerly §17.100.010].

17.225.020 Powers of the board.

The board of adjustment shall hear and decide:

A. Appeals from the decisions of the commission regarding alleged errors in enforcement of zoning ordinances and building codes;

B. Appeals from the decision of the commission on requests for conditional uses;

C. Appeals from the decisions of the commission on requests for variances from the terms of the zoning ordinances and from findings as may be required by sections of this title. [Ord. 92-17 §6, 1992; Ord. 90-44 §6, 1991. Formerly §17.100.020].

17.225.030 Persons who may appeal.

A written decision of the commission granting or denying approval under 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. 90-44 §6, 1991. Formerly §17.100.030].

17.225.040 New evidence – Changed circumstances.

Appeals alleging new evidence or changed circumstances may be remanded by the board of adjustment to the commission where they shall be treated as petitions for reconsideration. [Ord. 90-44 §6, 1991. Formerly §17.100.040].

17.225.050 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 an 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. 90-44 §6, 1991. Formerly §17.100.050].

17.225.060 Argument on appeal.

On appeal to the board of adjustment, any person who meets the requirements of KIBC 17.225.030 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. 90-44 §6, 1991. Formerly §17.100.060].

17.225.070 Appeal hearing.

A. The board of adjustment 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.

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 board of adjustment shall decide the appeal upon the appeal record, the written and oral argument, and the testimony and evidence presented on the appeal. The board of adjustment may exercise its independent judgment on the legal and factual issues raised by the appellant. [Ord. 90-44 §6, 1991. Formerly §17.100.070].

17.225.080 Decision.

A. The board of adjustment shall either affirm or reverse the decision of the commission in whole or in part. If the board of adjustment fails to approve the reversal of the commission’s decision, that decision is affirmed. The board of adjustment may make its own findings on factual issues, based upon the evidence in the record.

B. Every decision of the board of adjustment to affirm or reverse an action of the commission shall be based upon findings and conclusions adopted by the board of adjustment. 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 board of adjustment’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. 90-44 §6, 1991. Formerly §17.100.080].

17.225.090 Hearing examiner.

When the borough is either the applicant or appellant, 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 §3, 2010; Ord. 90-44 §6, 1991. Formerly §17.100.090].

17.225.100 Judicial review.

Any person aggrieved by a final decision of the board of adjustment under this chapter may appeal that decision to the superior court within 30 days of the decision. An appeal to superior court shall be heard solely on the record before the board of adjustment 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 board of adjustment shall not be reversed if, in light of the whole record, they are supported by substantial evidence. [Ord. 90-44 §6, 1991. Formerly §17.100.100].