Chapter 8.16 PLATTING ADMINISTRATION

The planning commission, acting as the borough platting authority, has jurisdiction over platting and shall adopt and publish rules and regulations to implement this power. Jurisdiction includes, but is not limited to, the control of:

A. Form, size and other aspects of subdivisions, dedications and vacations of land;

B. Dimensions and design of lots;

C. Street width, arrangement and rights-of-way, including requirements for access to lots and installation of street paving, curbs, gutters, sidewalks, sewers, water lines, drainage, and other public utility facilities and improvements;

D. Dedication of streets, rights-of-way, public utility easements and areas considered necessary by the platting board for other public uses;

E. Establishing by resolution a schedule of fees for actions under this chapter;

F. Compliance with 18 AAC 72.300 regarding subdivision plan review by the Department of Environmental Conservation. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.010)

8.16.020 Definitions.

In this chapter:

“Plat” means a map of a subdivision prepared by a qualified engineer.

“Simple plat” means a plat that will:

1. Subdivide a single lot into not more than four lots, and each lot created by the subdivision is five acres or larger;

2. Provide legal and physical access to a public highway or street for each lot created by the subdivision;

3. Not contain or require a dedication of a street, right-of-way, or other area; and

4. Not require a vacation of a public dedication of land or a variance from a subdivision regulation.

“Street” includes streets, avenues, boulevards, roads, lanes, alleys and other ways.

“Subdivision” means:

1. The division of a tract or parcel of land into two or more lots, sites or other divisions for the purpose, whether immediate or future, of sale or building development, and includes resubdivision and, when appropriate to the context, relates to the process of subdividing or to the land or areas subdivided; and

2. Does not include 14(c) surveys under the Alaska Native Claims Settlement Act, cadastral plats, cadastral control plats, open-to-entry plats, or remote parcel plats created by or on behalf of the state or federal governments regardless of whether these plats include easements or other public dedications. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.020)

8.16.030 Review procedures for plat approval.

A. Application Contents. A complete application for plat approval shall be filed with the borough planning department, and shall include the following documentation:

1. Title report identifying owners of the property and any others who may have an interest in the property affected by the proposed plat;

2. The original and four copies of the proposed plat with an executed certificate of ownership;

3. Proof of submission of proposed plat to Department of Environmental Conservation;

4. Names and addresses of adjacent property owners, and identification of the respective properties they own;

5. Payment of the platting fee in addition to recording fees.

B. Application Determination.

1. Within 60 days of the filing of a complete application for plat approval, the planning director shall approve, approve with conditions, or deny the application, or the director shall return the application to the applicant for modification or correction.

2. If the director fails to act within 60 days of receipt of a complete application, the application is considered approved and a certificate of approval shall be issued by the director on demand.

3. The applicant for plat approval may consent to an extension of the period for action by the director.

4. Notwithstanding the requirements of subsections (B)(1) and (B)(2) of this section, no application for plat approval may be approved by the planning director until the proposed plat has received Department of Environmental Conservation approval.

5. Notwithstanding the requirements of subsections (B)(1) and (B)(2) of this section, no vacation of a municipal street may be had without the consent by ordinance of the affected municipality.

6. The planning director shall state in writing to the applicant the reasons for denial of an application.

C. The planning director may determine that an application raises a particular issue or set of issues that warrants public review, and that the application should be subject to a public hearing. The application shall then be processed under the review procedures for petitions contained in NABC 8.26.070.

D. Unless specifically provided by the planning director, plat approval does not-constitute a permit under NABC Title 9. If a use of the land requiring a NABC Title 9 permit is contemplated, the applicant should submit a NABC Title 9 application to the planning department. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.030)

8.16.035 Platting standards within flood areas.

A. The planning director may deny approval of a plat that proposes to subdivide land within a flood area unless the following requirements have been met:

1. Require that all new subdivision proposals and other proposed development of more than five acres or involving more than 10 lots include within such proposals base flood elevation data.

2. Utilize any base flood elevation data from federal, state, local or other sources, as criteria for reviewing the new construction, substantial improvements or other development in flood areas.

3. Ensure that the subdivision and associated development are consistent with the need to minimize flood damages.

4. Ensure that all public utilities and facilities such as sewer, gas, electrical and water systems shall be located, elevated or constructed to minimize or eliminate flood damage.

5. Ensure adequate drainage shall be provided to reduce the exposure of structures, utilities and facilities to flood hazards.

6. Ensure evidence has been submitted that all necessary permits required by federal, state and borough law have been applied for and granted.

7. The preliminary and final plat shall include the ground elevation and the flood elevation, if available, at convenient reference points and flood hazard areas shall be labeled on preliminary and final plats.

8. Require disclosure that a lot is in a flood hazard area in any contract to purchase, rent or lease the lot.

B. In determining if the requirements of this section are fulfilled, the planning director shall, consistent with the purpose and the intent of this chapter, consider the following factors:

1. The danger of life and property due to the increased flood elevation or velocities caused by subdivision fill, roads, structures and intended uses.

2. The danger that structures may be swept onto other lands or downstream to the injury of others.

3. The adequacy of proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination and unsanitary conditions under flood conditions.

4. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner.

5. The requirements of the subdivision for a waterfront location and the availability of alternative locations not subject to flooding for the proposed subdivision and land uses.

6. The compatibility of the proposed uses with existing development and development anticipated in the foreseeable future and the relationship of the proposed subdivision to the floodplain management program for the area.

7. The safety of access to the property for emergency vehicles in times of flood.

8. The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters expected at the site.

9. The costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems and streets and bridges. (Ord. 10-04 § 1, 2010; Ord. 05-03 § 1, 2005. Formerly 9.32.040)

8.16.040 Information required on a plat.

A plat shall show:

A. Initial point of survey;

B. Original or reestablished corners and their descriptions;

C. Actual traverse showing area of closure and all distances, angles and calculations required to determine initial point, corners and distances of the plat;

D. Easements, rights-of-way, setbacks; and

E. All structures which encroach upon any easement, right-of-way, setback, or boundary line of said plat. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.040)

8.16.050 Waiver of review requirements for simple plats.

Notwithstanding other provisions of this chapter, upon submission of satisfactory evidence to the planning director that a plat meets the definition of a simple plat, as contained in NABC 8.16.020, a simple plat is not required to be prepared, submitted for approval, or recorded. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.050)

8.16.060 Alteration, replat or vacation petitions.

A. A recorded plat may not be altered or replatted except by the planning director on petition of:

1. The state;

2. The borough;

3. The incorporated municipality, or IRA or traditional tribal council in the case of an unincorporated village, in which all or a portion of the plat is located;

4. A public utility serving the area of the plat; or

5. The owners of a majority of the land affected by the alteration or replat.

B. A platted street may not be vacated except by the planning director on petition of:

1. The state;

2. The borough;

3. The incorporated municipality, or IRA or traditional tribal council in the case of an unincorporated village, in which all or a portion of the street is located;

4. A public utility serving the area of the street; or

5. The owners of a majority of the land fronting the part of the street sought to be vacated. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.060)

8.16.070 Review procedures for petitions.

A. Petition Contents. A complete petition for alteration, replat or vacation shall be filed with the borough planning department, and shall include the following documentation:

1. A copy of the existing plat;

2. A general description of the alteration or replat sought;

3. The original and four copies of the proposed plat, with an executed certificate of ownership;

4. Proof of submission of proposed plat to Department of Environmental Conservation;

5. Names and addresses of property owners of all properties contained within proposed plat, and all adjacent properties, and identification of the respective properties they own; and

6. Signature of petitioner(s).

B. Public Hearing on Petitions.

1. After receiving a complete petition for alteration, replat or vacation, the planning director shall fix a time for a public hearing on the petition which shall be held not more than 50 days after receipt of the complete petition.

2. Notice of the public hearing shall be published pursuant to NABC 2.08.030(C).

3. Notice shall also be mailed First Class postage prepaid to:

a. Each affected property owner who did not sign the petition, as determined by the planning director;

b. Each utility serving the area of the proposed plat; and

c. i. Each incorporated municipality affected by the proposed plat. Notice shall also be sent to the IRA or traditional tribal council of any incorporated or unincorporated village in the borough affected by the proposed plat, and

ii. The municipality and tribal council will also be sent a copy of the proposed plat.

4. The notice shall contain the following information:

a. When and by whom the petition was filed;

b. The purpose of the petition;

c. Time and place of the hearing;

d. Identity of the borough official to contact if there are any questions or comments; and

e. A general description of the alteration, replat or vacation sought.

C. Information Considered by the Planning Director. Before acting on a petition, the planning director shall consider:

1. Public testimony regarding the petition presented at the public hearing;

2. Any written comments regarding the petition submitted at, or prior to, the public hearing;

3. Any other information presented at the public hearing;

4. Comments and recommendations from the planning department; and

5. Comments and recommendations from an affected incorporated municipality, IRA and traditional council.

D. Petition Determination.

1. Within 10 days of the public hearing, the planning director shall either approve, approve with conditions, or deny the petition.

2. If the planning director fails to act within 60 days of the receipt by the planning department of the complete petition, the petition is considered approved and a certificate of approval shall be issued by the director on demand.

3. The petitioner(s) may consent to an extension of the period for action by the director.

4. Notwithstanding the requirements of subsections (D)(1) and (D)(2) of this section, no petition may be approved by the planning director until the proposed plat has received Department of Environmental Conservation approval.

5. Notwithstanding the requirements of subsections (D)(1) and (D)(2) of this section, no vacation of a municipal street may be had without the consent by ordinance of the affected municipality, or tribal council in the case of an unincorporated village.

6. If the petition is denied, the director shall state in writing to the petitioner the reasons for denial of the petition. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.070)

8.16.080 Title to vacated area.

A. The title to the street or other public area vacated on a plat attaches to the lot or lands bordering the area in equal proportions, except that if the area was originally dedicated by different persons, original boundary lines shall be adhered to so that the street area that lies on one side of the boundary line shall attach to the abutting property on that side, and the street area that lies on the other side of the boundary line shall attach to the property on that side. The portion of a vacated street that lies inside the limits of a platted addition attaches to the lots of the platted addition bordering on the area. If a public square or other dedicated property is vacated, the title to it vests in a city if it lies inside the city, in the tribe if it lies inside an unincorporated village, and in the borough if it lies inside the borough but outside all cities and unincorporated villages. If the property vacated is a lot, title vests in the rightful owner.

B. If the municipality or tribe acquired the street or other public area vacated for legal consideration or by express dedication to the municipality or tribe other than as a subdivision platting requirement, before the final act of vacation the fair market value of the street or public area shall be deposited with the planning director to be paid over to the municipality or tribe on final vacation. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.080)

8.16.090 Violations – Penalty.

A. The owner of land may not transfer, sell, offer to sell, or enter into a contract to sell subdivided land before a plat of the subdivision has been prepared, approved, filed and recorded in accordance with this chapter, unless the owner has received a waiver for a simple plat under this chapter.

B. A person may not file or record a plat or other document depicting subdivided land in a public recorder’s office unless the plat or document has been approved by the planning director.

C. For the violation of a provision of this chapter, a subdivision regulation adopted under this chapter, or a term, condition or limitation imposed by the planning director in the exercise of its powers under this chapter, a penalty not to exceed a fine of $300.00 may be imposed by the planning director for each violation.

D. Each day that an unlawful act or condition continues constitutes a separate violation. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.090)

8.16.100 Civil and criminal remedies.

A. The borough, or an aggrieved person, may institute a civil action against a person who violates a provision of this chapter, a subdivision regulation adopted under this chapter or a term, condition or limitation imposed by the planning director in the exercise of its powers under this chapter.

B. In addition to other relief, a civil penalty not to exceed $1,000 may be imposed for each violation. An action to enjoin a violation may be brought notwithstanding the availability of any other remedy. Upon application for injunctive relief and a finding of a violation or threatened violation, the Superior Court shall grant the injunction, as provided in AS 29.25.070(b) or any successor law.

C. The court may also impose a criminal penalty not to exceed a fine of $1,000 and imprisonment for no more than 90 days for each violation.

D. Each day that an unlawful act or condition continues constitutes a separate violation. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.100)

8.16.110 Recording.

Upon payment of the recording fee, the approved plat or replat must be acknowledged, filed and recorded by the planning director and is thereafter a lawful plat. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.110)

8.16.120 Appeals to the commission.

A. Any aggrieved person, including the applicant or petitioner, may appeal a decision of the planning director by serving written notice of appeal on the planning director (and the applicant) within 15 business days of receipt of the decision. Notice of an appeal is considered served when actually received or when properly mailed.

B. The notice shall state the reasons why the appellant believes the decision of the planning director is improper.

C. The issues before the commission shall be limited to those raised on appeal, and the evidence shall be limited to a review of the record, although further argument may be allowed. Except for an applicant or petitioner, the appellant must demonstrate the manner in which the appellant is adversely affected by the decision being appealed.

D. The burden of proof shall be on the appellant to demonstrate the issues on appeal by substantial evidence.

E. The commission may affirm or reverse the planning director’s decision, return the matter to the planning director for further evidence, or change conditions attached to any approval issued by the planning director. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.120)

8.16.130 Appeals to the assembly.

An appeal to the assembly from any decision of the planning commission may be made in the same manner and according to the same requirements as set forth above for appeals to the commission. Notice of appeal shall be served on the planning director. The assembly’s decision shall be final for the borough. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.130)

8.16.140 Appeals from assembly decisions.

Any person aggrieved by the final decision of the assembly may appeal such a decision or action to the Superior Court for the state of Alaska. The venue for any appeal to the Superior Court will be the Second Judicial District at Kotzebue. Such an appeal to the Superior Court for the state of Alaska may be sought only after final exhaustion of all administrative remedies and appeals. All such judicial appeals are appeals on the record, and no new evidence or issues may be presented. Both parties are limited to the record on appeal, except to the extent that the Alaska Rules of Civil Procedure require otherwise. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.140)

8.16.150 Date of hearing.

Where an appeal to the commission or assembly has been properly lodged under this chapter, a hearing shall take place at the next regularly scheduled or special meeting of the body hearing the appeal; provided, that sufficient time exists for the applicant and the borough to prepare the appeal. In no case should the date of hearing exceed three months from the date notice of the appeal is served on the planning director. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.150)

8.16.160 Hearing procedures.

Appeals under this chapter should be conducted informally and may be governed by such rules and procedures as the commission or assembly may choose to establish, except that:

A. Parties may appear in person or through counsel;

B. Parties may present witnesses and evidence on their own behalf;

C. Parties or their counsel may cross-examine opposing witnesses on matters relevant to the issues, impeach witnesses regardless of which party first called the witness to testify, and rebut evidence against himself;

D. Relevant evidence should be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of a common law or statutory rule which makes improper the admission of the evidence over objection in a civil action. Hearsay evidence may be considered, provided there are guarantees of its trustworthiness and that it is more probative on the point for which it is offered than any other evidence which the proponent can procure by reasonable efforts;

E. All appeals shall be open to the public, unless otherwise agreed by all parties to the appeal;

F. All appeals should be memorialized by an electronic recording or a stenographic record. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.160)

8.16.170 Specific procedures.

Subject to modification by the commission or the assembly, the following procedures should normally be followed in the conduct of an appeal under this chapter:

A. Before the Planning Commission. The decision of the planning director being appealed should be read into the record, parties then make opening statements (appellant going first), appellant then presents its case (puts on witnesses, giving the opportunity for cross-examination), the borough then offers rebuttal, parties then make closing remarks (appellant going first).

B. Before the Assembly. The decision of the planning commission being appealed should be read into the record or distributed to assembly members for review, parties then make opening statements (appellant going first), appellant then presents its case (puts on witnesses, giving the opportunity for cross-examination), the borough then offers rebuttal, parties then make closing remarks (appellant going first). In appeals before the assembly, the planning director or the borough clerk may assist in preparation of the record on appeal. The record on appeal shall contain a brief factual summary of the proceedings before the planning commission, and any other relevant information. Either party may request a full transcript of the prior proceedings before the planning commission. Such request must be in writing, presented to the borough clerk, and the borough clerk will deliver the transcript within 10 business days of the request. The party making such request must bear the costs of transcription. The borough clerk will notify the requesting party of the costs of such transcription once the transcription has been completed.

C. Telephonic Appearances. Telephonic appearances of parties to appeals is allowable, particularly in cases where it will result in reduced costs to all parties.

D. Failure to Appear. If any appellant has a scheduled appearance, but has failed to appear before the appellate body, the appeal will proceed as scheduled, and any documents or evidence submitted by the appellant will be presented to the appellate body at the time of the hearing. For good cause shown, the appellate body may postpone the hearing at the request of the appellant.

E. If the appellant is not the applicant (or petitioner), the applicant (or petitioner) should have the opportunity to participate in any hearing as if the applicant (or petitioner) is a party to the appeal. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.170)

8.16.180 Scope of review.

The commission or assembly may hear and decide de novo all matters appealed and may exercise independent judgment as to the weight of evidence supporting or refuting the decision being appealed, and may exercise independent judgment on legal issues raised by the parties. Decisions being appealed may be reversed, modified, remanded or affirmed by the commission or assembly. In each case where the reviewing body denies the appeal, it may also determine any penalties to be imposed for a violation. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.180)

8.16.190 Deliberations.

Upon close of the presentation of the case on appeal, and after any closing remarks have been made by the parties, the body hearing the appeal may adjourn to closed chambers to privately discuss any adjudicatory matters pertaining to the appeal or may otherwise take the matter under advisement prior to issuing a written decision on the matter under appeal. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.190)

8.16.200 Decisions.

No later than 15 business days following an appeal hearing under this chapter, the body empowered to conduct the appeal proceeding shall issue a written decision based on findings and conclusions adopted by the body hearing the appeal. An oral decision may be given on the record at the close of the proceedings, but such decision will not become a final decision from which appeal may be taken until that decision is issued as a written decision containing the required findings. Such findings must be in writing and must be reasonably specific so as to provide interested persons, and where appropriate, reviewing authorities, a clear understanding of the reasons for the decision entered. The decision, findings of fact and conclusions of law shall be forwarded to all parties to the appeal. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.200)

8.16.210 Reconsideration.

A decision of the commission or the assembly reached at the conclusion of a hearing or other proceeding may be reconsidered or reheard only if:

A. There was substantial procedural error in the original proceedings; or

B. The original decision was based on fraud or misrepresentation.

Any party to an appeal seeking reconsideration or rehearing must file a request with the borough clerk together with the materials supporting one or more of the grounds stated above within 10 business days after the date of the final decision for which reconsideration or rehearing is requested. A rehearing shall be conducted in the same manner as the original proceeding. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.210)

8.16.220 Ex parte contacts prohibited.

A. Members of the commission or the assembly, while acting in a quasi-judicial capacity, shall be impartial in all matters both in fact and in appearance.

B. No member of the commission or the assembly shall receive or otherwise engage in ex parte communications with the appellant, applicant, petitioner or other parties adversely affected by the appeal or members of the public concerning the appeal or issues specifically presented in the notice of appeal either before the appeal hearing or afterwards, during the period of time the matter is subject to reconsideration.

C. This section shall not be deemed to prevent those charged with conducting appeals under this chapter from discussing matters relating to the appeal among themselves or to prohibit communications between the borough staff and such persons where such staff members themselves are not named parties to an appeal.

D. Insofar as practicable, communications between borough staff and such commission or assembly members should avoid discussion of the merits, evidence or other nonprocedural matters related to a specific appeal. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.220)

8.16.230 Transition.

The provisions of this chapter shall apply only to those appeals or applications for administrative decisions filed on or after the date the ordinance codified in this chapter becomes effective. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.230)

8.16.240 Lien enforcement.

The failure to pay any penalty assessed or upheld as a result of a violation of this chapter, or the failure of an appeal (including any unpaid costs of appeal) creates a lien against the appellant and appellant’s real and personal property. The lien created herein may be enforced as provided in AS 34.35.005 through 34.35.045. The enforcement of the lien is a cumulative remedy and does not bar the collection of the charges for abatement or costs and attorney fees through a personal action. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.240)

8.16.250 Interpretation.

All questions regarding the planning director’s interpretation of the provisions of this chapter shall be treated as an appeal, if proper notice is served pursuant to NABC 8.16.120. (Ord. 95-04 § 1, 1995; Code 1986 § 8.08.250)