Chapter 18.08 TIDELANDS--PLATS--PREFERENCE RIGHTS

Chapter 18.08
TIDELANDS—PLATS—PREFERENCE RIGHTS

Sections

18.08.010 Approval and acceptance of state conveyance

18.08.020 Approval and adoption of subdivision plat

18.08.030 Time and places of posting plat

18.08.040 Publication of notice of posting plat

18.08.050 Time in which applications will be accepted for filing

18.08.060 Procedure for filing applications

18.08.070 Deposits for costs prerequisite to filing

18.08.080 Additional costs in certain cases

18.08.090 Procedures for processing filed applications

18.08.100 Appraisal by assessor

18.08.110 Review by city engineer

18.08.120 Processing of approved applications

18.08.130 Deeds—permanent register

18.08.140 Hearings officer—duties

18.08.150 Proceedings for determination by council of all disputes

18.08.160 Determination upon stipulation of facts

18.08.170 Rejection of protests other than by applicant

18.08.180 Handling of deposit and purchase funds

18.08.190 Forfeiture of preference rights

18.08.010 Approval and acceptance of state conveyance

The conveyance by the state to the city, dated April 12, 1962, of tide and submerged lands lying seaward of the city is approved and accepted and the lands therein are declared incorporated into the city limits. [CCK Art. II §9.1.1]

18.08.020 Approval and adoption of subdivision plat

The tidelands subdivision plat, hereinafter called plat, being the preliminary plat as amended by the council after public hearing thereon and due consideration thereof, is approved and adopted as the official tidelands subdivision plat of the city, of tide and submerged lands conveyed by the state to the city, by conveyance dated April 12, 1962. [CCK Art. II §9.1.2]

18.08.030 Time and places of posting plat

The plat shall be posted for a period of not less than 60 days, commencing 20 days after the date of final passage of Chapters 18.04 through 18.16 KCC, in three public places in the city, namely:

(a) In the office of the city clerk, City Hall;

(b) In the National Bank of Alaska building; and

18.08.040 Publication of notice of posting plat

The city clerk shall cause to be issued and published once a week for four weeks, in a newspaper of general circulation in the city, commencing 20 days after the date of final passage of Chapters 18.04 through 18.16 KCC, a notice of the posting of the plat containing the following statements:

(a) Time and places of posting;

(b) The date of final passage, and the effective date of the ordinance codified in Chapters 18.04 through 18.16 KCC, which adopts the plat as the official tidelands subdivision plat of the tide and submerged lands conveyed by the state to the city on April 12, 1962;

(c) That any and all persons, having or claiming preference rights provided by law and as herein defined to any part or parts of the subdivided land embraced within the boundaries of the plat, who fail to apply to exercise such rights under the provisions of Chapters 18.04 through 18.16 KCC within two years from and after August 26, 1962, which is declared to be the date upon which applications therefor will be first accepted by the city, have forfeited their preference rights provided by law and Chapters 18.04 through 18.16 KCC;

(d) That Chapter 18.04 through 18.16 KCC were enacted to protect occupants having preference rights, to afford due process of law, to provide procedures for applying for exercise of preference rights, for hearing and adjudicating adverse claims, and for conveying title to occupants holding preference rights defined by law and Chapters 18.04 through 18.16 KCC; and

(e) That copies of Chapters 18.04 through 18.16 KCC and application forms are available at the office of the city clerk. [CCK Art. II §9.1.4]

18.08.050 Time in which applications will be accepted for filing

Application forms will be accepted for filing on August 26, 1962, and ending two calendar years thereafter and at the close of business at 5:00 p.m., on August 26, 1964, after which no application forms will be furnished and after which no applications will be accepted for filing. [CCK Art. II §9.1.5]

18.08.060 Procedure for filing applications

Applications shall be submitted, and will be received for filing, only for the purpose of claiming preference rights herein defined to the tide and submerged lands conveyed by the state to the city.

(a) Application forms will be provided by the city clerk without charge at the clerk’s office in the City Hall.

(b) Applications must be submitted in triplicate.

(c) Applications not clearly legible nor properly completed and certified by the applicant will not be accepted for filing. Since the facts alleged may be used in hearings of disputes, their truth must be certified. The facts alleged will also be the basis for the conveyance of valuable property. Willful and deliberate misstatements of fact will be equivalent to attempting to obtain valuable public property by misrepresentation and may be prosecuted as obtaining property under false pretenses.

(d) Applications may be delivered or mailed to the city clerk, Box 1397, Kodiak, Alaska, with the proper deposit computed according to the nature of the application made. Applications properly completed accompanied with the proper deposit will be stamped with the time and date of filing and signed by the person accepting the deposit. The triplicate copy will then be delivered to the applicant or mailed if a return envelope with postage affixed is furnished.

(e) Any application for a deed based on an asserted right other than a preference right shall be rejected. An application based on more than one preference right of the classes herein defined may not be accepted for filing.

(f) Any applications for Class II preference right shall be filed by the city clerk together with all others of like nature to await the official promulgation of the pierhead line. Thereafter such applications shall be processed as applications under the Class I rights.

(g) No single application based on more than one class of preference right, nor any single application claiming title to two or more tracts which are not contiguous, shall be accepted for filing. Such applications shall be rejected and delivered to the applicant, or mailed if a return envelope with postage affixed is furnished.

(h) Applications not accompanied by the proper deposit for costs shall be rejected. [CCK Art. II §9.1.6]

18.08.070 Deposits for costs prerequisite to filing

The application form will assist the applicant in determining the proper costs to advance, which will depend upon the nature of the right claimed. In all cases, a filing fee of $10.00 will be required. Survey costs depend upon the area claimed at the rate of $0.02 per square foot. If the area claimed is different from the tract as it appears on the plat, the applicant shall show the measurements of the additional or lesser area claimed and compute and pay the different survey cost accordingly. Transfer costs will be the same in all cases. They cover the cost of time estimated to be required to prepare and execute the deed, publish notice, give notice of additional costs, if any, and give notice to applicant. In all cases transfer costs will be in the amount of $35.00. Deposit for appraisal costs will be required in all cases of Class III preference rights, or where another asserted right is determined by the council to be a Class III right. Appraisal costs will depend upon the area involved and the complexity of the appraisal sought. Where required as a deposit, the minimum amount is $25.00, but additional amounts not exceeding $25.00 may be required prior to delivery of deed. [CCK Art. II §9.1.7]

18.08.080 Additional costs in certain cases

Aside from deposits required at the time of filing applications, additional costs will be required to be paid prior to hearings where disputes require hearings, and for costs of land under a Class III right as well as appraisal thereof when a preference right sought to be exercised is determined to be a Class III right, as follows:

(a) When the area claimed does not comply with the boundaries of the tract shown on the plat, it is necessary to have a hearing to establish the validity of the right claimed and whether it is necessary for the plat to be changed to comply with the application. This may require notice to be given to adjacent occupants interested in the difference between the lands claimed and land as shown on the plat so that all parties in interest may be heard at the hearing.

(b) When applications conflict with the same area or portions thereof, it shall be necessary to conduct a hearing to determine the facts and the issue in question. Conflicting claims will be carefully scrutinized and each disputing party will bear the burden of proving facts sufficient to establish the validity of the claim.

(c) The party filing an application conflicting with a claim previously filed shall be required to deposit hearing costs in the amount of $50.00. If the conflict is not known at the time of filing, the applicant shall be advised of the conflict as soon as it is known and of the need to deposit the hearing costs.

(d) The applicant who, after hearing and determination by the council, is determined to have claimed the land of another shall be the party to bear the costs of the hearing. If such party did not deposit such costs, no deed shall be delivered until the cost is paid. Where the depositor is the prevailing party, the hearing cost deposited shall be refunded by the city.

(e) When title by Class III preference right is claimed, the applicant shall be required to deposit the appraised purchase price after appraisal has been made and the purchase price has been so determined. The same procedure will be applied when an application under another class of right is sought but it is determined that the only available right to the applicant is a Class III right.

(f) When a preference right is sought to be exercised other than a Class III right and such right is determined to be a Class III right, then the applicant shall be required to deposit the estimated cost of appraising the property claimed.

(g) The applicant who receives the deed from the city shall bear the cost of documentary stamps and the cost of recording the deed. [CCK Art. II §9.1.8]

18.08.090 Procedures for processing filed applications

The city clerk shall cause the following procedures to be carried out:

(a) All three copies of applications accepted for filing shall be stamped with time and date of filing and an application number in chronological order of filing.

(b) All original applications shall be filed in a permanent register and the names of the applicants entered in an alphabetical index which shall be a permanent part of such register.

(c) The application register shall be available for public inspection during office hours of the city clerk, except when in actual use for filing and indexing.

(d) Certified copies of all applications shall be prepared for all persons upon request upon their paying $0.50 per page for copies of the applications and any attachments forming a part thereof.

(e) Processing of duplicate applications. The third copy of the application will be returned to the applicant as receipt for deposit made, or mailed to applicant if a return envelope has been provided. The second copy shall be the working file copy to be handled and processed as follows:

(1) Applications to exercise Class I preference rights having waivers attached and which apply for lands which comply with the plat with respect to area and boundary locations shall be transmitted to the city engineer for handling as provided in KCC 18.08.110(b). Applications to exercise Class I preference rights which do not have waivers attached, irrespective of whether the lands applied for comply with the plat, shall be segregated for handling in the same manner as Class II preference right applications.

(2) Applications to exercise Class I preference rights having waivers attached and which claim lands which do not comply with the plat with respect to area and boundary locations shall be transmitted to the city engineer for handling as provided in KCC 18.08.110(a) and further processed as provided in KCC 18.08.120.

(3) Applications to exercise Class II preference rights shall be segregated and kept with Class I preference right applications not having waivers attached. All such applications shall be held in abeyance by the city until such time as the pierhead line is established by the Corps of Engineers, whereupon such applications shall be promptly honored and processed in the manner herein described for Class I preference right applications to which waivers are attached.

(4) Applications to exercise Class III preference rights and all applications determined to be Class III shall be transmitted to the assessor for appraisal as provided in KCC 18.08.100.

(5) No applications which combine Class I, Class II, and Class III, or any combination of such preference rights, will be accepted for filing. Any such application presented for filing shall be returned to the applicant for revision into two or more applications, each of which will apply for land under only one type of preference right.

(6) Applications to exercise one class of preference right which in part comply with the plat with respect to area and boundary locations, but do not wholly comply with the plat in such respects, shall be treated as if no part of the application so complies with the plat and shall be processed for contest hearing. [CCK Art. II §9.1.9]

18.08.100 Appraisal by assessor

All applications for Class III preference rights shall be transmitted to the assessor for appraisal. The appraisal shall be made on a form prepared in duplicate, the original of which shall be attached to the application and the duplicate of which shall be retained for the assessor’s records. Applications when appraised shall be transmitted to the city engineer for further processing. [CCK Art. II §9.1.10]

18.08.110 Review by city engineer

All applications being ready for processing shall be reviewed by the city engineer. Upon review and comparison with the plat, the engineer shall state, in duplicate, whether or not the application seeks to exercise a preference right to land which is described on the plat and complies with it in respect to area and boundary locations, and the interest of the city, if any, in the lands applied for.

(a) Applications which do not comply with the plat or which seek to exercise a preference right to land in which the city has, or believes it has, an interest shall be transmitted to the hearings officer for further proceedings under KCC 18.08.140.

(b) Applications which do comply with the plat with respect to area and boundaries and which do not seek to exercise a preference right to land in which the city has an interest shall be considered approved and shall be returned to the city clerk for further proceedings under KCC 18.08.120. [CCK Art. II §9.1.11]

18.08.120 Processing of approved applications

All applications returned to the city clerk approved by the city engineer, and appraised by the assessor, if required, shall be processed by the city clerk in the following manner. The city clerk shall ascertain if the deposit made by the applicant is sufficient to pay all known and estimated costs of survey, appraisal, transfer, and purchase, if of Class III, and if not, to advise the applicant that the remainder due shall be deposited with the city clerk before further processing. If or when the deposit is sufficient to pay all such costs, the city clerk shall cause to be published once a week for four weeks, in a newspaper of general circulation in the city, notice of the names of the applicant(s), the tract number(s) of the property claimed according to plat designations, and if Class III, its appraised value, and that the city will issue to the applicant(s) a deed therefor within 30 days after the date of last publication; provided, that before the date of last publication no adverse application or claim has been filed with the city. During the period of publication, the applications therefor shall be returned to the city engineer, who shall at the end of the period of publication note on the applications whether or not any adverse claims have been filed for the land in question. If adverse claims have been filed, the applications shall be further processed for hearing. If no adverse claims have been filed, the respective applications shall be returned to the city clerk. [CCK Art. II §9.1.12]

18.08.130 Deeds—permanent register

The city clerk shall then cause to be prepared a deed conveying such land to the applicant(s) by the city and transmit the deed to the mayor for execution. Notice shall then be sent to the applicant to take delivery of the deed at the office of the city clerk, who shall deliver the same to the applicant(s) if all requirements have been met and all costs, including purchase price, if required, have been paid. Duplicate originals of all executed deeds shall be kept in the office of the city clerk in a permanent register entitled “Kodiak Tidelands Deeds” with permanent alphabetical index of grantees. [CCK Art. II §9.1.13]

18.08.140 Hearings officer—duties

There is created, for the purpose of assisting the council in performing its duties of adjudicating disputes between claimants of preference rights to tide and submerged lands, the office of hearings officer. The hearings officer shall be a lawyer qualified to practice in Alaska and appointed by the council to serve without compensation other than an agreed part of the deposits made by claimants for hearing costs. The hearings officer’s duty shall be to set disputes for hearing and hear the evidence under oath of the parties to the disputes. Proceedings shall be informally conducted and their object shall be to determine without delay the respective basis of the conflicting claims. Upon the submission of each dispute, the officer shall prepare a short summary of the conflicting claims and the evidence submitted in support thereof, together with findings of fact and conclusions of law. This summary shall be transmitted to the council for consideration and adjudication. [CCK Art. II §9.1.14]

18.08.150 Proceedings for determination by council of all disputes

Upon receipt of the working files in all cases of disputes, and the summary of the hearings officer, together with copies of notices of hearings served upon or mailed to all parties to the dispute, the council shall set the dispute of hearing and determination, and cause notice to be served on all parties. Upon the council having heard the dispute, it shall enter its ruling thereon as quickly as possible, but not later than 30 days after the matter is submitted. Aggrieved persons shall have the right of appeal to the superior court. [CCK Art. II §9.1.15]

18.08.160 Determination upon stipulation of facts

Wherever possible to reach agreement of the parties at hearings before the hearings officer, a stipulation of facts shall be prepared and agreed upon by the parties. Where this is done, the officer shall prepare and attach his conclusions of law and submit the file to the city engineer to determine if the city’s interests are affected by the stipulation, or if a boundary change in the plat is necessary. If a plat boundary change is required and no third party or city interests are affected adversely by the proposed change in boundaries of tracts shown on the plat, upon approval of the council the plat shall be directed to be changed. Should it be determined by the city engineer that the stipulation adversely affects the interest of the city or those of third parties, the dispute shall be returned to the officer for further proceedings upon notice given to all parties. [CCK Art. II §9.1.16]

18.08.170 Rejection of protests other than by applicant

No objections will be received to proposed issuance of deed by the city on publication of notice thereof, nor will any person be permitted to appear and be heard at any hearing of a dispute before the hearings officer or the council, unless such objector or person is an applicant for preference rights of Class I, II, or III and has filed an application therefor with the city clerk. [CCK Art. II §9.1.17]

18.08.180 Handling of deposit and purchase funds

All funds received as deposits with applications for costs or purchase price for tide and submerged lands shall be deposited by the city clerk in the general fund. Such deposits will be credited by the city clerk as follows:

(a) Survey costs, as a credit to disbursements made to the tidelands engineer;

(b) Transfer costs, to administrative costs as deeds are issued;

(d) Hearing costs, to administrative costs, hearings officer; and

(e) Purchase costs of Class III lands shall be credited to a separate account in the general fund. [CCK Art. II §9.1.18]

18.08.190 Forfeiture of preference rights

Any occupant or owner or holder of preference rights as herein defined, who has not applied to the city for title thereto as herein provided, on or before two years after the date applications to exercise preference rights will be accepted for filing by the city under Chapters 18.04 through 18.16 KCC by a properly completed application duly filed with the city clerk and accompanied by the required deposit, has forfeited all right to assert the preference rights and acquire title to tide and submerged lands subject thereto from the city; and such tidelands and contiguous submerged lands subject to such unused preference rights shall thereafter be free and clear of all claims to preference rights and the city has no obligation to convey the same to any person or persons whomsoever, and the land shall then remain the property of the city and be subject to such disposition as hereinafter provided in Chapter 18.12 KCC. [CCK Art. II §9.1.19]