CHAPTER 15.39: BOARD OF ADJUSTMENT AND APPEALS

Section

Article I. Definitions

15.39.010    Definitions

Article II. Board

15.39.020    Board established; delegation

15.39.030    Board of adjustment and appeal jurisdiction

15.39.040    Composition; appointment; qualifications

15.39.050    Term [Repealed]

15.39.055    Term

15.39.060    Vacancies

15.39.070    Compensation and reimbursement

15.39.080    Officers

Article III. Hearing Procedures

15.39.090    Meetings, quorum

15.39.100    Rules of procedure

15.39.110    Conflict of interest; ex parte contact; code of ethics

Article IV. Appellate Process

15.39.120    Stay on appeal

15.39.130    Notice of appeals; form

15.39.140    Appeals; commencement

15.39.150    Remand

15.39.160    Notice

15.39.170    Preparation of the record; notice of hearing date

15.39.180    Written argument and evidence on appeal

15.39.190    Appeal hearing

15.39.200    Continuance, shortened time

15.39.205    Withdrawal of appeal by appellant; joint stipulation for dismissal of appeal

15.39.210    Scope of appellate review

15.39.220    Decision

15.39.230    City council or assembly review of vacation

15.39.240    Reconsideration by board of appeals

15.39.250    Judicial review

Article V. Appellate Process for Personal Wireless Service Facilities

15.39.260    Stay on appeal

15.39.270    Notice of appeals; form

15.39.280    Appeals; commencement

15.39.290    Service and notice

15.39.300    Preparation of the record; notice of hearing date

15.39.310    Written argument and evidence on appeal

15.39.320    Appeal hearing

15.39.330    Continuance, shortened time

15.39.340    Scope of appellate review

15.39.350    Decision

15.39.360    Judicial review

ARTICLE I. DEFINITIONS

15.39.010 DEFINITIONS.

(A)    For the purposes of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning:

•    “Aggrieved” means that a person’s real property interest in the use, enjoyment, or value of specific real property is adversely impacted by the determination being appealed. A person cannot be aggrieved for the purposes of this chapter if the person’s interest is no different from that of the general public.

•    “Appellant” means the party who files a notice of appeal pursuant to MSB 15.39.130.

•    “Board” means the Matanuska-Susitna Borough Board of Adjustment and Appeals (BOAA).

•    “De novo hearing” means trying a matter anew as if it had not been heard before, and as if no decision had been previously rendered.

•    “Entitlement applicant” means the applicant for a borough entitlement or a party subject to an enforcement work order.

•    “Ex parte” means by or for one party; done for, on behalf of, or on the application of one party only.

•    “Interested party” means:

(a)    the entitlement applicant;

(b)    any person aggrieved by a final determination by a borough official pursuant to MSB 15.39.030(A)(1) or (5), that was not rendered at a public hearing of the platting board or planning commission, or any person who would be aggrieved if such final determination being appealed were to be reversed on appeal;

(c)     any governmental agency;

(d)    the person to whom an enforcement order is issued;

(e)    any person who participated actively and substantively in proceedings before the platting board or planning commission and who is aggrieved by the final determination or who would be aggrieved if the final determination being appealed were to be reversed on appeal; or

(f)    the borough.

•    “Personal wireless service facilities” means as defined by Federal Telecommunications Act 47 USC 332.

•    “Primary parties” means the borough, the entitlement applicant, and any appellant who is an interested party and who is neither the borough nor entitlement applicant.

•    “Substantial evidence” means relevant evidence a reasonable mind might accept as adequate to support a conclusion.

(Ord. 15-014, § 1, 2015; Ord. 13-038, § 2, 2013: Ord. 07-002, § 2, 2007; Ord. 96-176, § 2, 1996; Ord. 94-030, § 3, 1994)

ARTICLE II. BOARD

15.39.020 BOARD ESTABLISHED; DELEGATION.

The BOAA is delegated the appellate functions for the borough, pursuant to A.S. 29.40.050.

(Ord. 94-030, § 3, 1994)

15.39.030 BOARD OF ADJUSTMENT AND APPEAL JURISDICTION.

(A)    The BOAA shall hear and decide the following:

(1)    appeals from final determinations or final orders of borough officials regarding alleged errors in enforcement or application of platting, special land use, or zoning ordinances unless a different appellate procedure is provided for by this code;

(2)    appeals from decisions of the planning commission on requests for conditional uses, variances, and other quasi-judicial zoning and land use determinations made by the planning commission pursuant to MSB Title 17;

(3)    appeals from decisions of the platting board regarding preliminary plats, variances, waivers, dedications, vacations, and other quasi-judicial determinations made pursuant to MSB Title 43;

(4)    [Repealed by 03-055, § 2, 2003]

(5)    appeals from decisions of the manager made pursuant to MSB 8.50.

(B)    [Repealed by 03-038, § 3, 2013]

(C)    The BOAA may not hear appeals under Palmer, Wasilla, or Houston land use ordinances.

(D)    The BOAA may not hear an appeal unless the appellant has proven that the appellant is an “interested party” as defined in MSB 15.39.010(A).

(Ord. 13-038, § 3, 2013: Ord. 03-055, § 2, 2003; Ord. 00-157 § 2, 2000; Ord. 99-113(AM), § 2, 1999; Ord. 96-176, § 3, 1996; Ord. 94-110, § 2, 1994; Ord. 94-030, § 3, 1994)

15.39.040 COMPOSITION; APPOINTMENT; QUALIFICATIONS.

(A)    The BOAA shall consist of five members. Two members shall have previous experience in planning or platting.

(B)    Preference shall be given to applicants who have quasi-judicial experience.

(C)    Each BOAA member shall be a registered voter in the borough.

(D)    A pool of three alternates shall be appointed to serve in the event there are fewer than five members present for a proceeding. The alternates shall meet the requirements for BOAA membership. Selection of the alternate for any hearing shall be done by rotation.

(E)    The mayor shall appoint BOAA members subject to assembly approval.

(Ord. 01-053, § 2, 2001; Ord. 94-030, § 3, 1994)

15.39.050 Term. [Repealed by Ord. 19-117, § 2, 2019]

15.39.055 TERM.

Irrespective of the limits specified in MSB 4.05.050, members of the board of adjustment and appeals may serve more than three consecutive terms.

(Ord. 19-117, § 3, 2019)

15.39.060 VACANCIES.

(A)    A vacancy on the BOAA shall be filled according to the standards in MSB 15.39.040 for the remainder of the term of the former member.

(B)    A vacancy occurs as provided at MSB 4.05.030(B).

(Ord. 94-030, § 3, 1994)

15.39.070 COMPENSATION AND REIMBURSEMENT.

BOAA members shall be compensated at the rate of $50 per meeting. All requests for reimbursement shall be actual expenses incurred on authorized BOAA business.

(Ord. 94-030, § 3, 1994)

15.39.080 OFFICERS.

(A)    The BOAA annually shall select from its membership a chairperson and vice chairperson. The chairperson shall preside at meetings of the BOAA and shall represent the BOAA as directed by its membership.

(B)    The vice chairperson shall act in the absence of the chairperson.

(C)    The clerk shall act as secretary to the BOAA.

(Ord. 94-030, § 3, 1994)

ARTICLE III. HEARING PROCEDURES

15.39.090 MEETINGS; QUORUM.

A quorum must be present to conduct BOAA business. A majority of the authorized membership of the BOAA constitutes a quorum. All BOAA actions shall be by vote of a majority of the BOAA’s authorized membership who are qualified to vote on the question under MSB 15.39.110.

(Ord. 00-189, § 2, 2000; Ord. 94-030, § 3, 1994)

15.39.100 RULES OF PROCEDURE.

The BOAA may, by resolution, adopt its own written rules of procedure, consistent with this title, governing the conduct of its proceedings. In all matters of procedure not governed by rules adopted by the BOAA or by this chapter, the current edition of Robert’s Rules of Order Newly Revised shall govern.

(Ord. 97-038, § 7, 1997; Ord. 94-030, § 3, 1994)

15.39.110 CONFLICT OF INTEREST; EX PARTE CONTACT; CODE OF ETHICS.

(A)    A BOAA member may not participate in deliberation or vote on a question if:

(1)    the BOAA member or a member of the BOAA member’s immediate family has a substantial financial interest in any property affected by the decision; or

(2)    the BOAA member or a member of the BOAA member’s immediate family could foreseeably profit in any material way through a favorable or unfavorable decision.

(B)    BOAA members shall be impartial in all administrative decisions, both in fact and in appearance. No member may receive or otherwise engage in ex parte contact with the appellant, appellee, other parties interested in the appeal, or members of the public, concerning the appeal or issues presented in a notice of appeal, either before the appeal hearing or during any period of time the matter is submitted for decision or subject to reconsideration.

(C)    All members of the BOAA shall abide by the borough code of ethics codified at MSB 2.71.

(Ord. 94-030, § 3, 1994)

ARTICLE IV. APPELLATE PROCESS

15.39.120 STAY ON APPEAL.

A primary party may file a motion for a stay pending appeal, and the motion will be decided by the BOAA. Opposing parties shall be given at least three business days to file a response to a motion for a stay. A stay is discretionary and may be granted only if the moving party shows good cause, and shows that the harm caused by the stay is less than the harm from not imposing the stay.

(Ord. 13-038, § 4, 2013: Ord. 94-030, § 3, 1994)

15.39.130 NOTICE OF APPEALS; FORM.

(A)    An interested party, including but not limited to a borough or city official, may file with the BOAA a notice of appeal on a form provided by the BOAA available at the office of the clerk. The notice of appeal shall state with specificity the grounds for the appeal, include the appellant’s mailing address or that of the appellant’s attorney, and be accompanied by a filing fee of $500, to help defray the administrative cost of the appeal including but not limited to preparation, advertising, and mailing costs. The notice of appeal must include proof that the appellant is an “interested party,” as defined in MSB 15.39.010(A).

(B)    At the time of filing the appeal, a deposit of $500 will be made for preparation of the transcript. Should the preparation cost of the transcript be less than the $500 deposit, a refund for the difference shall be made. Should the preparation cost of the transcript be more than the $500 deposit, no additional cost will be charged.

(C)    In the event the appellant prevails, the filing fees and transcription fees will be refunded.

(Ord. 13-038, § 5, 2013; Ord. 09-024, § 2, 2009: Ord. 94-030, § 3, 1994)

15.39.140 APPEALS; COMMENCEMENT.

(A)    A written notice of appeal shall be filed with the clerk within 21 days from the date on which the written decision or order is issued. If an appeal is not taken as provided in this section, the right to appeal is forfeited.

(Ord. 06-147AM, § 4, 2006; Ord. 94-030, § 3, 1994)

15.39.150 REMAND.

(A)    An appeal alleging changed circumstances or new evidence, which with due diligence could not have been discovered for presentation to the original decision maker, may be remanded by the BOAA. The case on remand shall be treated as a petition for reconsideration.

(B)    Appeals which lack findings of fact and conclusions by the original decision maker may be heard by the BOAA or remanded with an order to make findings of fact and conclusions.

(C)    The BOAA shall make findings of fact and conclusions setting forth the basis for the remand.

(Ord. 07-002, § 3, 2007; Ord. 94-030, § 3, 1994)

15.39.160 NOTICE.

(A)    Record. Upon the timely filing of an appeal, the clerk shall request the record from borough staff.

(B)    Mailing. The clerk shall mail or personally serve notice to the BOAA members, the borough, and appellant, or to the parties’ attorneys. The notice shall include the following:

(1)    a brief description of the decision appealed; and

(2)    the appellant’s notice of appeal.

(Ord. 96-176, § 4, 1996; Ord. 94-030, § 3, 1994)

15.39.170 PREPARATION OF THE RECORD; NOTICE OF HEARING DATE.

(A)    The decision maker whose order or decision has been appealed shall provide the clerk with all pertinent records, including the written decision or order and a transcript of meetings, if any, within 10 days after the notice of appeal has been mailed or personally served. If a transcript cannot be prepared in 10 days, staff shall advise the clerk when the transcript will be completed. Within 10 days after receiving the records, the clerk shall mail or personally serve the record and the transcript to the BOAA, primary parties, and borough staff assigned to the appeal. The transcript pages and the record pages shall be separately numbered.

(B)    The appellate record shall include the minutes and a verbatim transcript of the proceeding before the board or commission being appealed, if any, all documentary materials submitted to the board, commission or officer, the written decision or order, and the notice of appeal.

(C)    Documents or other information considered by the BOAA which were not part of the record below shall become a part of the record before the BOAA.

(D)    When the clerk delivers the record to the primary parties and BOAA, the clerk shall also give written notice to the same persons of the date written arguments are due and the hearing date.

(E)    Publication. Upon receipt of the record by the clerk from borough staff, the clerk shall publish in a newspaper of general circulation within the borough the time and place at which the BOAA shall conduct a hearing to consider the appeal.

(Ord. 96-176, § 5, 1996; Ord. 94-030, § 3, 1994)

15.39.180 WRITTEN ARGUMENT AND EVIDENCE ON APPEAL.

(A)    Interested parties may submit to the clerk written arguments regarding the appeal. Written arguments shall be submitted within 15 days after the date the appellate record has been mailed or personally served. Written arguments submitted in a timely manner shall become part of the appellate record, and shall be mailed or personally served to the BOAA, and primary parties, by the clerk within seven days after the written arguments are due. Any person not a primary party may request copies of the records filed with the clerk’s office upon payment to defray copy and delivery costs. Interested parties who are not primary parties, but wish to participate in the proceedings and receive service, must submit their name, mailing address, and physical address, in writing, to the borough clerk. In cases with multiple interested parties, the BOAA on the authority of the chairperson may request that one person accept service on behalf of other interested parties with similar interests at stake. The interested parties appointed for service shall provide their name, mailing address, and physical address to the borough clerk in writing and shall submit a written list of names of the parties for which the interested party will accept service.

(B)    Any evidence not already part of the record that an interested party wants the BOAA to consider must be submitted to the clerk’s office before or on the day written arguments are due. Evidence or written arguments shall not be accepted after the deadline and before the hearing date unless the party requests and is granted leave by the BOAA chairperson to make a late filing. New evidence may be submitted at the time of hearing if the BOAA determines that the evidence was not discovered or could not have been obtained prior to the deadline for evidence submittal, or if the evidence is relevant and it is in the interest of justice that it be considered.

(Ord. 07-002, § 4, 2007; Ord. 04-161, § 2, 2004; Ord. 96-176, § 6, 1996; Ord. 94-030, § 3, 1994)

15.39.190 APPEAL HEARING.

(A)    The BOAA shall hold a public hearing on the appeal within 15 days after written arguments are due. The hearing may be continued by the BOAA chairperson, by stipulation of the primary parties, or by motion pursuant to MSB 15.39.200.

(B)    On appeal, only interested parties who have submitted their name to the borough clerk five days prior to the meeting may present oral argument and they must provide their name, physical and mailing address in writing by the time of the hearing, pursuant to MSB 15.39.180(A). The clerk shall maintain a list of those persons requesting to be heard, which shall be provided to anyone upon request. At the BOAA’s discretion other interested parties may testify. Unless the BOAA, for good cause shown, permits a change, the appellate hearing shall be subject to the following order and time limitations:

(1)    borough staff: 10 minutes to present the decision below and to set forth the evidence and rationale of the decision maker;

(2)    appellant: 15 minutes;

(3)    entitlement applicant, if not the appellant: 15 minutes;

(4)    borough, if not the appellant: 15 minutes;

(5)    other interested parties: five minutes each;

(6)    appellant, for rebuttal: five minutes.

(C)    The chairperson may limit testimony by any person to reduce cumulative or repetitive testimony. Failure to observe the above procedures in a hearing may not affect the validity of the BOAA’s decision so long as the primary parties have had a reasonable opportunity to be heard.

(D)    The BOAA may adjourn to adjudicatory session to deliberate a case before it.

(Ord. 96-176, § 7, 1996; Ord. 95-019, § 2, 1995; Ord. 94-030, § 3, 1994)

15.39.200 CONTINUANCE, SHORTENED TIME.

(A)    A motion for continuance or shortening of any of the deadlines or time limitations in MSB 15.39.170 through 15.39.190, or established by the BOAA, shall be in writing and filed with the clerk prior to 10 days before the date being continued. If the continuance or shortened time request is for an emergency, less notice is allowable at the BOAA chairperson’s discretion. The clerk shall mail or personally serve the motion to the BOAA and the primary parties within seven days after receiving the motion. An opposing party may file a written opposition. An opposition shall be filed within seven days after the clerk has mailed or personally served the motion.

(B)    The BOAA chairperson may rule on a motion for continuance without calling a BOAA meeting. The continuance may be granted for good cause. Shortened time motions may only be granted upon showing of an emergency that is not self-imposed by the party requesting shortened time. The ruling shall be in writing and shall specify the date to which the deadline has been changed or the time frame which has been extended or shortened.

(C)    The clerk shall, within seven days after the ruling is issued, mail or personally serve the ruling on the primary parties. The clerk may phone or fax notice of the order to the primary parties, followed by mailing or personal service of the order. Interested parties, other than the primary parties, are not entitled to file or respond to motions for continuance or shortened time unless specifically invited to do so by the BOAA chairpersons.

(Ord. 04-161, § 3, 2004; Ord. 96-176, § 8, 1996; Ord. 94-030, § 3, 1994)

15.39.205 WITHDRAWAL OF APPEAL BY APPELLANT; JOINT STIPULATION FOR DISMISSAL OF APPEAL.

(A)    If a motion for withdrawal of an appeal is filed by the appellant or a joint stipulation for dismissal of an appeal is filed by the parties, the chairperson may rule on those requests by granting a withdrawal or dismissal, without calling a BOAA meeting.

(B)    A withdrawal of an appeal or the filing of a joint stipulation for dismissal does not constitute the appellant prevailing in their appeal.

(Ord. 17-130, § 2, 2017)

15.39.210 SCOPE OF APPELLATE REVIEW.

(A)    The BOAA may exercise its independent judgment on matters that relate to the interpretation or construction of ordinances or other provisions of law.

(B)    The BOAA shall defer to the judgment of the decision maker regarding findings of fact if they are supported in the record by substantial evidence.

(C)    Where the BOAA decides that a finding of fact made by the decision maker is not supported by substantial evidence, the BOAA shall make its own finding on the factual issue, based upon the following:

(1)    The evidence in the record developed before the decision maker; or

(2)    The record developed at a de novo hearing before the BOAA; or

(3)    A combination of the record developed in paragraphs (1) and (2).

(Ord. 94-030, § 3, 1994)

15.39.220 DECISION.

(A)    The BOAA may affirm, reverse, or modify, in whole or in part, the appealed determination, decision, or order, or remand pursuant to MSB 15.39.150. If the BOAA does not reverse or modify the determination, decision, or order appealed, the determination, decision, or order appealed is final.

(B)    The BOAA’s decision shall be in writing and shall state that it is a final decision, include the BOAA’s findings of fact and conclusions, and notify the parties of their right to appeal. The findings shall 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 decision shall be filed with the clerk within 30 days after the completion of the hearing.

(D)    The BOAA decision shall be mailed or personally delivered, within 10 days after the BOAA’s decision, to the interested parties who filed a written argument and requested a copy of the decision.

(E)    A person aggrieved by a BOAA decision may not submit a substantially similar petition to the lower level decision-maker as that which was appealed to the BOAA unless a change of circum-stances has occurred. The mere passage of time is not a change in circumstances.

(Ord. 07-002, § 5, 2007; Ord. 04-161, § 4, 2004; Ord. 94-071(sub1), § 4 (part), 1994; Ord. 94-030, § 3, 1994)

15.39.230 CITY COUNCIL OR ASSEMBLY REVIEW OF VACATION.

(A)    A BOAA decision affirming a vacation is subject to MSB 43.15.035(D).

(B)    The date of the final written decision on a vacation shall be the beginning date for the 30-calendar-day period in which approval by the assembly or city council is required.

(C)    A veto or approval of a vacation by the assembly or city council is not subject to administrative appeal to the BOAA.

(Ord. 94-071(sub1), § 4 (part), 1994; Ord. 94-030, § 3, 1994)

15.39.240 RECONSIDERATION BY BOARD OF APPEALS.

(A)    The BOAA may reconsider its decision upon petition and remittance of $100 by any person who filed a written argument pursuant to MSB 15.39.180. The motion for reconsideration shall be filed within ten days after the date the BOAA’s decision has been mailed or personally served by the clerk.

(B)    The BOAA shall review the petition at its next meeting and decide whether to reconsider the matter. The decision shall be based on the petition and any response thereto. The BOAA may also hear oral argument of the primary parties and the interested party who filed the reconsideration motion, if not one of the primary parties. In determining whether to reconsider the matter, no additional evidence shall be taken. A decision shall be reconsidered only if:

(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 BOAA hearing.

(C)    If the petition for reconsideration is granted, the BOAA shall set the matter for rehearing. The party requesting reconsideration must remit an additional $100 fee at this time. Reconsideration shall be heard within 30 days of the hearing granting reconsideration. Briefing upon reconsideration shall be submitted ten days prior to the hearing date. Interested parties who filed written arguments for the original hearing before the BOAA may file briefs in the reconsideration process abiding by the briefing schedule set forth in this section. Interested parties who are not primary parties may not participate in requests for continuance or shortened time unless the interested party is also the party requesting reconsideration.

(D)    For purposes of appeal to the appropriate court:

(1)    Where the BOAA denies the petition for reconsideration, the BOAA’s decision on the petition for reconsideration is the final decision.

(2)    Where the BOAA grants the petition for reconsideration, the BOAA’s decision on reconsideration is the final decision.

(Ord. 96-176, § 9, 1996; Ord. 94-030, § 3, 1994)

15.39.250 JUDICIAL REVIEW.

An appeal from a BOAA decision may be taken within the time prescribed in the Alaska Rules of Appellate Procedure, Part 600, by a primary party or interested party who filed a written argument before the BOAA. The clerk shall estimate the cost of preparing the transcript of the public hearing and compiling the record on appeal. The appellant to the court shall deposit the estimated costs with the clerk in advance. Upon completion of the record on appeal, the clerk shall refund any excess deposit or charge the appellant for costs exceeding the deposit. The record may not be released to the appellant until full payment is made.

(Ord. 96-176, § 10, 1996; Ord. 94-030, § 3, 1994)

ARTICLE V. APPELLATE PROCESS FOR PERSONAL WIRELESS SERVICE FACILITIES

15.39.260 STAY ON APPEAL.

Upon commencement of an appeal, the decision below is stayed until the appeal becomes final before the BOAA.

(Ord. 11-116, § 2 (part), 2011)

15.39.270 NOTICE OF APPEALS; FORM.

(A)    An interested party, including but not limited to a borough or city official, may file with the BOAA a notice of appeal of a decision on a request to place, construct, or modify a personal wireless service facility. The appeal shall be on a form provided by the BOAA available at the office of the clerk. The notice of appeal shall state with specificity the grounds for the appeal, include the appellant’s mailing address or that of the appellant’s attorney, and be accompanied by a filing fee of $500, to help defray the administrative cost of the appeal including but not limited to preparation, advertising, and mailing costs. The notice of appeal must include proof that the appellant is an “interested party” as defined in MSB 15.39.010(A).

(B)    At the time of filing the appeal of a decision on a request to place, construct, or modify a personal wireless service facility, a deposit of $500 will be made for preparation of the transcript. Should the preparation cost of the transcript be less than the $500 deposit, a refund for the difference shall be made. Should the preparation cost of the transcript be more than the $500 deposit, no additional cost will be charged.

(Ord. 15-014, § 2, 2015; Ord. 11-116, § 2 (part), 2011)

15.39.280 APPEALS; COMMENCEMENT.

(A)    A written notice of appeal shall be filed with the clerk within five business days from the date on which the written decision or order is issued. If an appeal is not taken as provided in this section, the right to appeal is forfeited.

(Ord. 11-116, § 2 (part), 2011)

15.39.290 SERVICE AND NOTICE.

(A)    Record. Upon the timely filing of an appeal, the clerk shall request the record within one business day from receipt of an appeal.

(B)    Service. The clerk shall mail or personally serve notice to the BOAA members, the borough, and appellant, the applicant, or to the parties’ attorneys. If a party agrees to be served via email, the clerk may email all documents required to be served by this article to that party.

(C)    The notice shall include the following:

(1)    a brief description of the decision appealed; and

(2)    the appellant’s notice of appeal.

(Ord. 11-116, § 2 (part), 2011)

15.39.300 PREPARATION OF THE RECORD; NOTICE OF HEARING DATE.

(A)    The decision maker whose order or decision has been appealed shall provide the clerk with all pertinent records, including the written decision or order and a transcript of meetings, if any, as soon as possible but at least within five business days after the notice of appeal has been mailed, personally served, or emailed. If a transcript cannot be prepared in five business days, staff shall advise the clerk when the transcript will be completed. As soon as possible, but at least within five business days after receiving the records, the clerk shall email, mail, or personally serve the record and the transcript to the BOAA, primary parties, and borough staff assigned to the appeal. The transcript pages and the record pages shall be separately numbered.

(B)    The appellate record shall include the minutes and a verbatim transcript, if available, of the proceeding being appealed, all documentary materials submitted to the decision maker, the written decision or order, and the notice of appeal.

(C)    Documents or other information considered by the BOAA which were not part of the record below shall become a part of the record before the BOAA.

(D)    When the clerk delivers the record to the primary parties and BOAA, the clerk shall also give written notice to the same persons of the date written arguments are due and the hearing date.

(E)    Publication. Upon receipt of the record by the clerk from borough staff, the clerk shall publish in a newspaper of general circulation within the borough the time and place at which the BOAA shall conduct a hearing to consider the appeal.

(Ord. 15-014, § 3, 2015: Ord. 11-116, § 2 (part), 2011)

15.39.310 WRITTEN ARGUMENT AND EVIDENCE ON APPEAL.

(A)    Interested parties may submit to the clerk written arguments regarding the appeal. Written arguments shall be submitted within nine business days after the date the appellate record has been emailed, mailed, or personally served. Written arguments submitted by the deadline shall become part of the appellate record, and shall be mailed, personally served, or emailed to the BOAA, and primary parties, by the clerk within three business days after the written arguments are due. Any person not a primary party may request copies of the records filed with the clerk’s office upon payment to defray copy and delivery costs. Interested parties who are not primary parties, but wish to participate in the proceedings and receive service, must submit their name, email address, whether they agree to service by email, their mailing address, and physical address, in writing, to the borough clerk. In cases with multiple interested parties, the BOAA on the authority of the chairperson may request that one person accept service on behalf of other interested parties with similar interests at stake. The interested parties appointed for service shall provide their name, email address, mailing address, and physical address to the borough clerk in writing and shall submit a written list of names of the parties for which the interested party will accept service.

(B)    Any evidence not already part of the record that an interested party wants the BOAA to consider must be submitted to the clerk’s office before or on the day written arguments are due. Evidence or written arguments shall not be accepted after the deadline and before the hearing date unless the party requests and is granted leave by the BOAA chairperson to make a late filing. New evidence may be submitted at the time of hearing if the BOAA determines that the evidence was not discovered or could not have been obtained prior to the deadline for evidence submittal, or if the evidence is relevant and it is in the interest of justice that it be considered.

(Ord. 15-014, § 4, 2015: Ord. 11-116, § 2 (part), 2011)

15.39.320 APPEAL HEARING.

(A)    The BOAA shall hold a public hearing on the appeal within 15 business days after written arguments are due. The hearing may be continued by the BOAA chairperson, by stipulation of the primary parties, or by motion pursuant to MSB 15.39.330.

(B)    On appeal, only interested parties who have submitted their name to the borough clerk five days prior to the meeting may present oral argument and they must provide their name, physical and mailing address, phone number, and email address in writing by the time of the hearing, pursuant to MSB 15.39.310(A). The clerk shall maintain a list of those persons requesting to be heard, which shall be provided to anyone upon request. At the BOAA’s discretion other interested parties may testify. Unless the BOAA, for good cause shown, permits a change, the appellate hearing shall be subject to the following order and time limitations:

(1)    Borough staff: ten minutes to present the decision below and to set forth the evidence and rationale of the decision maker;

(2)    Appellant: 15 minutes;

(3)    Entitlement applicant, if not the appellant: 15 minutes;

(4)    Borough, if not the appellant: 15 minutes;

(5)    Other interested parties: five minutes each;

(6)    Appellant, for rebuttal: five minutes.

(C)    The chairperson may limit testimony by any person to reduce cumulative or repetitive testimony. Failure to observe the above procedures in a hearing may not affect the validity of the BOAA’s decision so long as the primary parties have had a reasonable opportunity to be heard.

(D)    The BOAA may adjourn to adjudicatory session to deliberate a case before it.

(Ord. 15-014, § 5, 2015: Ord. 11-116, § 2 (part), 2011)

15.39.330 CONTINUANCE, SHORTENED TIME.

(A)    A motion for continuance or shortening of any of the deadlines or time limitations in MSB 15.39.300 through 15.39.320, or established by the BOAA, shall be in writing and filed with the clerk three days before the date being continued, if possible. The clerk shall mail or personally serve or email the motion to the BOAA and the primary parties the next business day after receiving the motion. An opposing party may file a written opposition. An opposition to the motion shall be filed within three business days after the clerk has mailed, personally served, or emailed the motion.

(B)    The BOAA chairperson may rule on a motion for continuance or shortening of time allotted without calling a BOAA meeting. Either may be granted for good cause, but the decision to grant or deny must consider the implications of the remaining time to process the application as dictated by the Federal Communications Commission declaratory ruling dated November 18, 2009, and any applicable subsequent regulatory changes. Shortened time motions may only be granted upon showing of an emergency that is not self-imposed by the party requesting shortened time. The ruling shall be in writing and shall specify the date to which the deadline has been changed or the time frame which has been extended or shortened.

(C)    After the ruling is issued, the clerk shall serve the ruling on the primary parties within one business day. The clerk may phone or fax notice of the order to the primary parties, followed by mailing, emailing, or personal service of the order. Interested parties, other than the primary parties, are not entitled to file or respond to motions for continuance or shortened time unless specifically invited to do so by the BOAA chairpersons.

(Ord. 11-116, § 2 (part), 2011)

15.39.340 SCOPE OF APPELLATE REVIEW.

(A)    The BOAA may exercise its independent judgment on matters that relate to the interpretation or construction of ordinances or other provisions of law.

(B)    The BOAA shall defer to the judgment of the decision maker regarding findings of fact if they are supported in the record by substantial evidence.

(C)    Where the BOAA decides that a finding of fact made by the decision maker is not supported by substantial evidence, the BOAA shall make its own finding on the factual issue, based upon the following:

(1)    The evidence in the record developed before the decision maker; or

(2)    The record developed at a de novo hearing before the BOAA; or

(3)    A combination of the record developed in subsections (C)(1) and (2) of this section.

(Ord. 15-014, § 6, 2015: Ord. 11-116, § 2 (part), 2011)

15.39.350 DECISION.

(A)    The BOAA may affirm, reverse, or modify, in whole or in part, the appealed determination, decision, or order. If the BOAA does not reverse or modify the determination, decision, or order appealed, the determination, decision, or order appealed is final.

(B)    The BOAA’s decision shall be in writing and shall state that it is a final decision, include the BOAA’s findings of fact and conclusions, and notify the parties of their right to appeal. The findings shall 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 decision shall be filed with the clerk within five business days after the completion of the hearing.

(D)    The BOAA decision shall be emailed, mailed, or personally delivered, within two business days after the BOAA’s decision, to the interested parties who filed a written argument and requested a copy of the decision.

(E)    A person aggrieved by a BOAA decision may not submit a substantially similar petition to the lower level decision maker as that which was appealed to the BOAA unless a change of circum-stances has occurred. The mere passage of time is not a change in circumstances.

(Ord. 15-014, § 7, 2015: Ord. 11-116, § 2 (part), 2011)

15.39.360 JUDICIAL REVIEW.

An appeal from a BOAA decision may be taken within the time prescribed in the Alaska Rules of Appellate Procedure, Part 600, by a primary party or interested party who filed a written argument before the BOAA, or as permitted by the Federal Telecommunications Act, 47 USC 332. The clerk shall estimate the cost of preparing the transcript of the public hearing and compiling the record on appeal. The appellant to the court shall deposit the estimated costs with the clerk in advance. Upon completion of the record on appeal, the clerk shall refund any excess deposit or charge the appellant for costs exceeding the deposit. The record may not be released to the appellant until full payment is made.

(Ord. 15-014, § 8, 2015)