MEMORANDUM

TO: Timothy Navarre, Assembly President

Members, Kenai Peninsula Borough Assembly

THRU: Dale Bagley, Mayor

Colette Thompson, Borough Attorney

FROM: Max Best, Borough Surveyor

Holly B. Montague, Assistant Borough Attorney

DATE: January 24, 2002

SUBJECT: Ordinance 2002-07, clarifying the process for appeal of planning commission decisions and for reconsideration of plat committee decisions by the full planning commission

This ordinance is proposed to clarify procedures for plat committee appeals and to clarify the types of decisions appropriate for appeal to the board of adjustment from the planning commission. Currently, there is a conflict in Chapter 2.40 of the code and KPB 20.16.200. KPB 20.16.200 states that appeals from the plat committee are taken to the board of adjustment. However, KPB 2.40.080 states that appeals from the plat committee are taken to the planning commission. As a practical matter, this conflict has been resolved by a planning commission reconsideration of the plat committee decision. This has worked effectively because it has given staff and all interested parties an opportunity to present all relevant evidence to the full planning commission. There is no appeal fee for the planning commission hearing and they consider the decision de novo. The word "appeal," however, is a misnomer for this process since the plat committee is comprised of members of the planning commission. In reality, the planning commission is giving a full reconsideration to the plat committee's decision, rather than hearing an appeal. The ordinance eliminates the conflict between Title 2 and Title 20 and clarifies that the planning commission procedure is a reconsideration and not an appeal.

The second element of this ordinance clarifies that it is quasi-judicial decisions made by the planning commission that are appealable to the board of adjustment. Questions frequently arise over whether particular planning commission decisions are appealable to the board of adjustment and the borough has been subject to an appeal to the supreme court regarding this issue (Cabana v. Kenai Peninsula Borough, 21 P.3d 833 (Alaska 2001)). Quasi-judicial decisions are those where general law or policy impacts an individual's property rights. For example, preliminary plat and conditional use permit decisions are quasi-judicial in nature because the borough code is being applied to an individual's use of their own property, whereas street naming or borough land classification decisions are not appealable because they involve decisions made by the borough about its own property. (There is still a public process, however, for decisions that are not quasi-judicial; for example, both the land classification and street naming processes involve public comment periods and public hearings so that valuable comments from citizens are taken into consideration when the borough makes these decisions.)