Alaska Statutes: What are the most important statutes for planning commissioners to be concerned with?
G G overns the organization, powers, and activities of local government. M ost statutes that provide guidance or tell a local government what it can and cannot do are found in Title 29. L ocal officials should be familiar with Title 29 and review it before enacting local laws or policies and procedures. Alaska Statute Title 29
Title 29: Borough Powers in Alaska Alaska State law requires that every organized borough must exercise three fundamental powers: Education (AS 29.35.160) Planning, Platting and Land Use Regulation (AS 29.35.180) Assessment and Collection of Taxes (AS 29.35.170)
Borough Authority for Planning in Alaska The manner in which a borough obtains the power of planning, platting and land use regulation depends on two factors: (1)The classification of the borough (2) The geographic area in which the power is to be exercised
(1) Classification of the Borough The Denali Borough is classified as a Non-Unified Home Rule Borough
Non-Unified Home-Rule Borough A Home-Rule Borough has adopted a home-rule charter, the equivalent of a local government constitution. A Non-Unified Home-Rule Borough is one in which city governments are permitted, but not required. Currently there are six non-unified home-rule boroughs in the State of Alaska: Denali Borough Haines Borough Lake and Peninsula Borough North Slope Borough Northwest Arctic Borough City and Borough of Yakutat
What does this means in terms of Borough Planning, Platting and Land Use Regulation ? Alaska Statutes Sec. 29.35.180. Land use regulation. (a) A first or second class borough shall provide for planning, platting, and land use regulation in accordance with AS 29.40. (b) A home rule borough shall provide for planning, platting, and land use regulation. (§ 10 ch 74 SLA 1985) Alaska State law requires that a Home-Rule Borough must provide areawide (throughout the entire borough) planning, platting and land use regulation in accordance with rules established by the borough charter or ordinance.
Delegation of Borough Powers AS 29.40.010(b) authorizes a borough to delegate to a city any of its powers and duties that are governed by AS 29.40. Non-Unified Home-Rule Boroughs may delegate powers and duties. Example: Denali Borough Ordinance No. 95-01: An Ordinance Authorizing the City of Anderson to continue Land Use Planning, Platting, and Regulation within the Municipal boundaries of the City
Two chapters in Title 29 address planning authority for Home-Rule Boroughs: Chapter 35. Municipal Powers and Duties Chapter 40. Planning, Platting, and Land Use Regulation
AS 29.40. Planning, Platting and Land Use Regulation Home-Rule Boroughs are compelled to follow only one full section of AS 29.40: AS 29.40.200. Subdivisions of state land. and parts of another: AS 29.40.160. Title to vacated area, subsections (a) and (b).
Aside from these two sections of Title 29, the Borough charter and ordinances prescribe how planning, platting and land use regulation will be carried out in the Borough. AS 29.40. Planning, Platting and Land Use Regulation
Duties and Functions of the Denali Borough Planning Commission
ARTICLE VII. PLANNING Section 7.01 Planning Commission There shall be a Planning Commission consisting of nine members appointed by the Mayor and confirmed by the Assembly. The powers and duties of the Planning Commission, and the terms, qualifications and compensation of its members shall be provided by ordinance. Until such time as the Assembly determines the necessity of a Planning Commission, the Assembly shall serve as such. What the Borough Charter Requires:
DBC Chapter 5.25 PLANNING COMMISSION 5.25.010 Establishment of commission. What the Denali Borough Code Requires: Planning Commission: Performs the functions of planning, platting, and zoning for the Borough. Holds public hearings on planning and zoning matters when necessary. (handouts)
DBC Chapter 5.25 PLANNING COMMISSION 5.25.010 Establishment of commission. What the Denali Borough Code Requires: Planning Commission: Makes recommendations to the Borough Assembly on matters concerning or relating to: planning and zoning enforcement of appropriate regulations amendments to ordinances other matters within the scope of the planning and zoning power. Serves as the platting authority for the borough, approving or rejecting proposed plats, replats and vacations of public ways according to law. [Ord. 04-04 § 2; Code 1989 § 34-1.]
The Denali Borough Code prescribes the composition and qualifications of the Planning Commission as well as the specific duties and functions the Commission must fulfill. What the Denali Borough Code Requires:
DBC 5.25.020 Composition and qualifications. What the Denali Borough Code Requires: The planning commission shall consist of nine members from the same districts and in the same proportion as the assembly. Each commissioner: Shall be appointed by the mayor and confirmed by the assembly. The letters “A” through “I” will be used and will be assigned to the same districts as the corresponding assembly seat designation. Must meet qualifications of a voter set forth in DBC 8.05.0208.05.020 Be a resident of the district to which the member’s seat is assigned.
DBC 5.30.010 Duties and functions. What the Denali Borough Code Requires: The planning commission shall prepare and recommend to the Borough Assembly: A comprehensive plan consisting of maps and related tests for the systematic development of the borough; (DBC 5.30.020 Comprehensive Plan.) A zoning ordinance to implement the comprehensive plan (DBC 9.15 Zoning.)
DBC 5.30.010 Duties and functions (continued) What the Denali Borough Code Requires: The planning commission shall prepare and recommend to the Borough Assembly: A subdivision ordinance (DBC 9.10 Subdivisions.); The official map of the borough (which includes references to zoning and other applicable restrictions prescribed by the commission);
DBC 5.30.010 Duties and functions (continued) What the Denali Borough Code Requires: The planning commission shall prepare and recommend to the Borough Assembly: Municipal land entitlement recommendations; (DBC 5.30.030 Municipal land entitlement; DBC 4.05.010 B. Acquisition by Borough Municipal Land Entitlement Selections.) Modifications to these documents.
DBC 5.30.010 Duties and functions. What the Denali Borough Code Requires: The commission shall publish notice of and hold at least one public hearing before submitting its recommendations under subsection A of this section to the assembly.
DBC 5.30.010 Duties and functions. What the Denali Borough Code Requires: The planning commission shall: Act as the platting board; (DBC 9.10 Subdivisions) Act upon requests for variances; ( DBC 9.10.090 Variances) and Act upon requests for conditional uses.
DBC 5.30.010 Duties and functions. What the Denali Borough Code Requires: Subject to any ordinance adopted pursuant to AS 29.33.245*, no platting request, variance or conditional use may be granted except upon an affirmative vote of a majority of the voting members of the commission. * Chapter 29.33. AREAWIDE BOROUGH POWERS AND DUTIES [Repealed, Sec. 88 ch 74 SLA 1985].
How Does the Planning Commission Make Decisions?
DBC 5.25.090 Rules of proceedings. Meetings shall be conducted under Robert’s Rules of Order, and such modified or amended rules as may be adopted by the commission. [Ord. 04-04 § 2; Code 1989 § 34-9.]
Types of Motions Robert’s Rules of Order identifies five major types of motions: Main or Principal Motions Subsidiary Motions Incidental Motions Privileged Motions Unclassified Motions http://www.robertsrules.com/http://www.robertsrules.com/ http://www.rulesonline.com/http://www.rulesonline.com/ (handout)
Motions A motion is a proposal that the Planning Commission take certain action, or that it express itself as holding certain views.
How Motions Are Made Step 1 - Obtaining the Floor: Before a member can make a motion, it is necessary that he/she should obtain the floor -- that is, rise after the floor has been yielded, and address the presiding officer by her/his official title. If the member is entitled to the floor, (i.e. no one else has the floor), the chairperson "recognizes" him, or assigns him the floor.
How Motions Are Made Step 2 – Making the Motion: After obtaining the floor, the member says, "I move that" (which is equivalent to saying, "I propose that"), and then states the action he/she proposes to have taken. Thus a member "moves" (proposes) that: - a resolution be adopted, or amended, or referred to a committee, - a vote of thanks be extended, etc.
What Types of Actions Might Result from a Motion?
Denali Borough Planning Commission Regular Meeting, November 28, 2006 7.) New Business a.(next resolution, 06-07) A resolution for vacation and replat of tracts E2 and E3, creating tracts E-2A and E-3A, first addition Healy Small tracts Alaska Subdivision. b.A resolution to accept the Denali Borough Planning Commission Handbook c.A resolution commending Nierenberg and Wright’s Planning Commission service. d.Develop strategy to engage public and special interest groups in the Comprehensive Plan. Establish timeline and goals and review FNSB Comp Plan Timeline and Communications Plan prepared by Chuck TOMKIEWICZ. e.A resolution seeking $40,000 in funding to enable the Denali Borough Planning Commission to retain the professional services required to conduct an accurate, scientifically valid survey of the citizens of the Denali Borough regarding the Comprehensive Plan.
Resolutions A resolution: Calls for action. Is always a main motion Is submitted in writing because of its importance, length, or complexity. A formal expression of the opinion or will of a group adopted by a vote.
What the Denali Borough Code Requires… Resolutions
A. All formal acts of the commission shall be by resolution bearing: 1. The heading “Denali Borough Planning Commission”; 2. The space for the serial number to be assigned: “Resolution No. __”; 3. A short and concise title descriptive of its subject and purposes; DBC 5.25.120 Formal acts by resolution.
Resolutions 4. Short premises and whereas clauses descriptive of the reasons for the resolution, if necessary (also referred to as preamble) ; 5. The resolving clause, “Be It Resolved:” (request for action) ; and 6. Provision for signature after the test, “Adopted (date)” and designated lines for the signatures of the commission presiding officer and the borough clerk/treasurer. DBC 5.25.120 Formal acts by resolution.
What are examples of formal acts by the commission? Granting a variance Granting a conditional use permit Approving a plat (handout)
Findings What are they? A statement by the commission of the evidence and reasoning used to arrive at a decision. Show the reasoning process that got the commission from the evidence presented during the public hearing to its final conclusion to grant or deny the applicant's request. Important in helping the public understand why the commission reached the decision it did.
Findings Even if members of the public disagree with a commission decision, they may not become as upset or angry if they understand the reasoning that lead to a decision.
Findings One of the most common reasons that courts overrule commission decisions is that the commission has failed to prepare findings. The lack of findings will result in a remand to the commission or, if justice requires, a de novo hearing by the court where the court orders a new hearing and assumes the role of the commission.
Findings The court has made it clear that even if an ordinance does not require findings, they must nevertheless be made in quasi-judicial proceedings such as a variance proceeding. The court has also explained why findings are necessary, how they should be structured, and the benefit a commission will derive from going through the exercise of making findings.
Findings Set out the relevant facts found from the evidence presented Relate these facts to the conditions that must be proved or to the standards that must be met State whether the relevant condition or standard is shown to have been met or not by the identified facts State whether all the necessary elements have been sufficiently shown.
Findings If there was no evidence given to prove one or more of the necessary elements, this lack of necessary evidence must be stated. The findings would then go on to state whether the entitlement or permit is granted or denied. If special conditions or limitations are to be imposed on the permit, there should be findings that justify the additional limitations. If evidence is rejected because it is believed to be unreliable or unbelievable, then the commission should state that it did not rely on that evidence.
Typical findings include: description of request statement of facts reasons for approval or denial conditions of approval
Findings Tell You Who What When Where Why
The best findings include the following five key elements: 1. An identification of the parties, property, and the requested. Ensures that everyone has reached a decision on the same subject. “Frames the issues."
Five Key Elements: 2. A list of the witnesses, documents, and exhibits relied upon. Use only evidence that was introduced at the hearing. Personal knowledge may be used if that knowledge is commonly shared by others in the community. Knowledge that is not widely shared may be used so long as it is announced and the parties are given the opportunity to rebut it.
Five Key Elements: 3. An identification of the standard established by the ordinance for the action requested by the applicant. The standard might be "undue hardship," "public safety," or "exceptional circumstances." By stating the standard, the commission acknowledges that it knows the standard, and it helps the commission focus on the standards that must be met.
Five Key Elements: 4. An explanation, fact by fact, why the evidence does or does not establish that the standard has been met. Try not to leave out any facts. Even if the court disagrees with the commission's judgment, it is likely to uphold the decision if it feels that a hard look was taken at all the evidence.
Five Key Elements: 5. If the request or relief is granted, a description of it and any conditions should be attached. Invaluable for the parties and staff. Findings can be prepared after a decision is made and adopted at the next meeting. Almost any finding is better than no finding. If the commission does not announce the reasons for a decision, it will reflect poorly on the commission, and the decision could be jeopardized.
In what situations would findings be prepared? (DBC 5.30.010) What legal tools would you use to prepare your findings?
How Do You Make Findings? Three methods are commonly used in Alaska and discussed in more detail in The Alaska Planning Commission Handbook: 1. Planning Commission prepared: The commission composes each of the findings through the commission's usual decision- making process. 2. Planning Commission/Staff prepared: The commission discusses the evidence; determines its decision along with a summary of findings and refers this to staff. Staff drafts detailed findings and decision, which is returned to commission for final approval. 3. Staff prepared: Staff includes the proposed findings and decision with its report on the application.