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(a) Any person(s) aggrieved by a final decision of the administrative official or Commission and a party of record may file an appeal. The appeal shall be heard by the Kenai City Council acting as the Board of Adjustment. To be a “person(s) aggrieved” by a final decision of the administrative official or Commission the person must be: (1) the applicant for the action taken or determination, or the owner of the property that is the subject of the action or determination under appeal; or (2) the administrative official; or (3) a legal occupant or owner of an interest in real property who shows that the decision of the administrative official or Commission has or could have an adverse effect on the legal occupant’s or owner’s use or enjoyment of the property or on the value of the property interest asserted. A legal occupant is an occupant with a current rental or lease agreement executed by the owner, or owner’s agent, of the real property in question. An interest that is no different from that of the general public is not sufficient to make a person aggrieved. To be a “party of record,” a person, legal entity or government agency must show that the person, legal entity or government agency participated with either oral or written comments at the hearing before the Planning and Zoning Commission or before the administrative official making a final decision.

(b) Appeals from final decisions of the administrative official or the Commission must be submitted in writing to the City Clerk within fifteen (15) days of the decision. The appeal notice shall be in writing and must contain:

(1) The signature, name, and mailing and physical addresses of the appellant;

(2) A description of the action or determination from which the appeal is sought and the date upon which it became a final decision;

(3) The reason for the appeal, which must include a description of harm to the appellant, including why the appellant meets the definition of an “aggrieved person”;

(4) A statement of the relief requested by the appellant;

(5) The street address of the property that is the subject of the action or determination being appealed and the name and address of the owner(s) of the property;

(6) The appellant shall pay a filing and records preparation fee as set forth in the City’s schedule of fees adopted by the City Council. An application to proceed with an appeal as an indigent may be filed with the City Clerk’s office on a form provided by the Clerk. The chair of the Board of Adjustment may allow an applicant who qualifies as an indigent a reduced filing fee or a payment plan, where the chair is able to make a written finding, based on information provided by the applicant, that payment of the appeal fee would be a financial hardship for the appellant. Based upon the information provided, the fee may be reduced or waived in accordance with the following schedule:

Annual income as a percent of current Health and Human Services (HHS) poverty guidelines for Alaska

Percent of fee reduced

1—100%

90% Waiver

101—149%

75% Waiver

150—174%

50% Waiver

175—199%

25% Waiver

200% plus

No Waiver

Any appellants with income equal to or less than two hundred percent (200%) of the HHS poverty guidelines for Alaska for the year in which the appeal is filed may apply for a payment plan in which the filing fee shall be paid in full within six (6) months of the date of filing.

(c) The City Clerk shall reject any notice of appeal that does not comply with the requirements of subsection (a) or (b) of this section and notify the appellant of the reasons for rejection. If a notice of appeal is rejected for reasons other than timeliness, a corrected notice of appeal that complies with this section will be accepted as timely if filed within seven (7) days of the date of the mailing of the notice of rejection. The appellant may appeal the Clerk’s final determination on standing or whether a party is “aggrieved” under subsection (a) of this section to the Board of Adjustment.

(d) The appeal shall be heard by the Kenai City Council acting as the Board of Adjustment. Members of the Board of Adjustment must be present in person for hearings held on appeals in order to participate in rendering a decision or voting on an appeal.

(e) The following acts or determinations may not be appealed: (1) a decision to cite or not to cite a person for a violation of the code under KMC 14.20.260 or any other provisions of the code; (2) a decision not to issue an enforcement order under KMC 14.20.260 or any other provision of the code; (3) any recommendation for or against approval of the adoption, revision, or amendment of the zoning code, zoning map, comprehensive plan, any other plan, a rezoning or any other matter involving a recommendation.

(f) Procedure.

(1) The Board of Adjustment shall ordinarily set a date for and hold a hearing on all appeals within forty-five (45) days of the filing of the appeal. However, should the forty-fifth day fall on a weekend or a municipal holiday, the hearing may be scheduled for the next following weekday which is not a municipal holiday under KMC 23.40.020(a)(1) through (10) and (b). For good cause, the Board of Adjustment may hold the hearing up to sixty (60) days after the filing of the appeal. Notice of the time and place of such hearing shall be mailed to all interested parties and to all property owners within three hundred (300) feet or the appropriate distance as required by the public hearing of the property involved at least fifteen (15) days prior to the hearing. Notices to the appellant and/or applicant for the action or determination must be sent by certified mail, return receipt requested.

(2) Within thirty (30) days after the hearing, the Board of Adjustment shall render a decision on the appeal. In exercising the above-mentioned powers, the Board of Adjustment may reverse, remand or affirm, wholly or partly, or may modify the order, requirement, decision or determination, as ought to be made, and to that end shall have all the powers of the body from whom the appeal is taken.

(3) All hearings of the Board shall be open to the public. The Board shall issue a written opinion, stating its decision, the reasons for its decision, and the vote of each member entitled to vote upon each question. The Board of Adjustment may undertake deliberations immediately upon the conclusion of the hearing on appeal or may take the matter under advisement and meet at such other time as is convenient for deliberations until a decision is rendered. Deliberations need not be public and may be in consultation with the City Attorney. An electronic recording shall be made of the hearings and shall be reduced to written minutes and, if needed, a verbatim transcript. The minutes and verbatim transcript shall be made a public record. Copies of the decision shall be promptly posted on the City’s official web site and mailed to all parties participating in the appeal.

(Ords. 925, 1554-93, 1650-95, 2082-2005, 2142-2006, 2528-2011, 2743-2014, 2893-2016, 3011-2018)

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