Kenai council decides who has right to appeal

Posted: Monday, March 20, 2006

After some debate and testimony from a half dozen residents Wednesday night, the Kenai City Council decided who has the legal right to appeal final zoning rulings made by the Board of Adjustments.

Debate over who does and doesn’t have legal standing to file appeals in Kenai began a month ago when the council introduced an ordinance amending its city code to clarify what could be appealed and who could file the appeal.

Following much debate at that time, city administration went back to the drawing board and revised the proposed ordinance.

Many of those testifying Wednesday were not familiar with the revisions.

State law and the Alaska Supreme Court have allowed municipalities to limit legal standing in order to prevent excessive litigation over land use issues, according to language in the ordinance.

Kenai defines a person with legal standing as a person aggrieved by a final decision.

The proposed ordinance listed four criteria for qualifying as the person aggrieved, including being the applicant for the action taken, the owner of the subject property, the administrative official of the city or “an occupant or owner of an interest in real property who can show proof of adverse effect ... the action could have on the use, enjoyment or value of that real property.”

The original version of the proposed ordinance did not include occupants of property, only owners.

Kenai attorney Mark Osterman on Wednesday said, “There’s a discrimination against lease holders.”

The substitute ordinance, however, addressed that issue.

In its original form, the ordinance also said people with property located within 300 feet of the subject property had the right to appeal without first showing an adverse effect on their own property.

Some citizens testifying Wednesday said they felt some zoning decisions affect Kenai residents regardless of where in the city they live or own property.

“I feel I should have a right to appeal a decision to — for example — put a car dealership by a city park,” said Laura Siebert.

“I believe any resident of the city of Kenai should have standing to appeal zoning decisions,” said Gerald Brookman.

“This is undemocratic,” said Alan Van Horn. “Something that happens more than 300 feet from me does affect me.”

Council member Rick Ross told the residents that the substitute ordinance addressed those issues.

He said the adverse effect did not need to be solely monetary. It could also be the effect on the use or enjoyment of the property. Also the affected property did not have to be within 300 feet of the subject property and the aggrieved person could be an occupant as well as an owner of the affected property.

“That’s a very broad definition (of aggrieved),” Ross said.

Council member Linda Swarner asked that a fifth qualifier be added, that a person be a resident of the city of Kenai to have standing.

Swarner’s amendment was approved unanimously and the substitute ordinance was approved with council members Cliff Massie and Robert Molloy casting dissenting votes.

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