Introduced by: Mayor
Date: March 17, 1998
Hearing: April 21, 1998
Action: Postponed to 05/19/98
Action: Postponed to 06/02/98
Action: Postponed to 6/16/98
Action: Enacted as Amended
Date: 06/16/98
Vote: 6 Yes, 2 No, 1 Absent





KENAI PENINSULA BOROUGH
ORDINANCE 98-09



AN ORDINANCE AMENDING KPB 14.40 REGARDING PARKING, SIZE, AND WEIGHT RESTRICTIONS AND CONTROL OF CONSTRUCTION

AND BLOCKAGE WITHIN BOROUGH RIGHTS-OF-WAY

WHEREAS, KPB 14.40 was adopted in July 1996; and

WHEREAS, administration of the ordinances since its adoption indicates the need for revisions to enhance compliance and protect the borough's rights-of-way;

NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH:

SECTION 1. KPB 14.40.050 is amended as follows:

14.40.050 Right-of-way construction permit required.

A right-of-way construction permit is required under the circumstances set forth in this section.

A. Construction. Construction permits are required for construction of a road or driveway within a dedicated right-of-way.

B. Traffic flow; barricades. Construction permits are required to regulate the flow of traffic, to place any traffic regulatory device or sign within a dedicated right-of-way, or for placement of any barricade or blockage which impedes [PREVENTING] lawful use of a constructed right-of-way, or right-of-way under construction.

C. Information required. The following information shall be required for all applications to construct, improve, or alter a borough right-of-way:

1. A statement of the length and width of right-of-way to be constructed, the proposed uses after construction, and a drawing on the plat of the location and proposed design and method of the construction;

2. Approximate locations of flood plain, floodways, wetlands, streams, lakes, or other water bodies adjacent to or within 50 feet of the outer boundaries of the right-of-way;

3. Approximate grades of the natural terrain and final grade of the proposed road;

4. Soil conditions of the area subject to construction;

5. Identification of all properties to be served or accessed by the proposed construction;

6. Amount, type and placement of materials used in construction; and

7. Where information provided by existing topographic maps, aerial photography, and photographs is inadequate to accurately reflect conditions of the right-of-way or potential problems created or exacerbated by construction, additional information, surveys, or engineering analysis may be required prior to issuance of a permit.

Section 2. KPB 14.40.060(A) is amended as follows:

14.40.060 Permit application and conditions.

The following application procedures and conditions must be met for right-of-way construction permits:

A. Application form. A right-of-way construction permit may be obtained from the Planning department by filing an application on a form provided by the borough, [AND SHALL INCLUDE A DRAWING SHOWING THE LOCATION AND DESIGN OF THE PROPOSED ROAD OR DRIVEWAY] which contains the information required by KPB 14.40.050(C). The construction activity shall be conducted only in accordance with the issued permit conditions.

Section 3. KPB 14.40.060(B)(6) is amended as follows:

B. Mandatory conditions. All permits shall be subject to the following conditions:

6. Upon completion of construction the permittee shall provide an as-built drawing [OR CENTERLINE SURVEY COORDINATES] prepared by a professional land surveyor registered to practice in Alaska under AS 8.48 to the borough not later than a date determined by the planning director upon permit approval.

11. Rights-of-way for motor vehicle use within the Kenai Peninsula Borough Road Service Area shall meet borough road standards as set forth in KPB 14.06, and applicants for right-of-way construction permits must follow the requirements of that chapter. If it appears from the application that there are multiple parcels benefitted by proposed construction a local improvement district in accord with the provisions of KPB 14.31 and 14.32 may be formed at the option of the owners of the benefitted parcels.

(a) The following factors shall be considered by the planning director in determining whether exceptions to the requirement of constructing vehicular access roads to borough standards may be granted:

(i) If the right-of-way serves a single parcel which cannot be further subdivided, construction to borough maintenance standards is generally not required.

(ii) If the right-of-way is not intended for motor vehicle use, but rather solely for trail use such as by pedestrians, bikes, horses, all-terrain vehicles, or snow machines, construction to borough standards is not required. The borough may require signage disallowing vehicular access on such rights-of-way.

Section 4. KPB 14.40.060(C) is amended as follows:

C. Discretionary conditions. The planning director may impose the following discretionary conditions:

1. The permit may be subject to additional conditions established by the planning director to protect and manage borough rights-of-way by preventing damage to the rights-of-way and adjacent public and private property or water bodies.

2. The posting of a bond in favor of the borough or other security may be required for permits involving right-of-way construction, except driveway construction permits. The amount of bond shall be based on the length of right-of-way subject to construction. The bond shall be released upon the receipt of the as-built survey and the borough's determination that the construction has been performed in compliance with permit requirements, within the boundaries of the right-of-way, and does not pose a threat to the right-of-way or adjacent lands and water bodies. The bond warrants the permittee will faithfully observe the terms and conditions of the permit and may be used to defray any costs for restoration and rehabilitation of the property, including without limitation environmental damage and cleanup. The bond may be in the form of a certificate of deposit ("CD") of a term specified by the planning director appropriate to the period of time it will take to complete construction. The certificate of deposit shall be in the borough's name, deposited with a duly licensed commercial bank having a branch office in Soldotna, Alaska. Principal and interest may be applied to defray any costs incurred by the borough in rehabilitation and restoration of the right-of-way. Upon satisfactory compliance with all permit conditions and termination of the permit, any balance remaining, including any remaining accrued interest, will be returned to the permittee. The security, bond or CD shall not be the borough's exclusive monetary remedy if the costs of restoration and cleanup exceed the amount of the CD.

3. A right-of-way construction permit may be denied if conditions cannot be placed on it to prevent damage to the rights-of-way, adjacent public or private property, or water bodies. Dedication of right-of-way alone does not mean a construction permit will be issued if issuance may damage the right-of-way, adjacent private or public property, or water courses and water bodies.

[C.]

D. Water bodies. Permits will not be issued to construct any part of a road or driveway within the right-of-way where the driveway or road will be parallel and within 50 feet of a [STREAM] bank of a watercourse or shore of a lake unless necessary for access to a lot where no reasonable alternative access exists or unless the road is for access to a bridge or public facility, water body or watercourse.

Section 5. KPB 14.40.070 is amended as follows:

14.40.070 Oversize and overweight permits -- Size and weight restrictions.

A. Regulation establishment. If it is determined by the road service area [BOARD] director that oversize and overweight regulations are needed within the road service area, the road service area [BOARD] director shall decide [AT A PUBLIC MEETING] to which rights-of-way the restrictions will apply. The rights-of-way proposed for regulation shall be published in a newspaper of general circulation within the borough at least twice before [THE PUBLIC HEARING] imposition, with the first date of published notice being at least 14 days prior to [THE MEETING] imposition. Signage indicating size and weight restrictions that are applicable to a particular road shall be posted on the length of road subject to the restriction. The roads director shall prepare a report on the rights-of-way proposed for regulation for the road service area board's review. Any regulation shall continue until the road service area board passes a resolution lifting the regulation. [REGULATIONS ADOPTED] Restrictions for particular rights-of-way remain in place [ANNUALLY FROM APRIL 1 TO SEPTEMBER 30] unless modified or discontinued by the road service area board. [A RESOLUTION LIFTING A SIZE OR WEIGHT REGULATION MAY ONLY BE ADOPTED AFTER MEETING THE PUBLIC NOTICE AND HEARING REQUIREMENTS FOR ADOPTION OF A REGULATION SET FORTH IN THIS PARAGRAPH.]

B. Permit required. An oversize and overweight permit is required for those vehicles and equipment exceeding the gross weight, width and height set forth in 17 AAC 25 for rights-of-way designated by the road service area board. [SUCH PERMITS ARE REQUIRED BETWEEN APRIL 1 AND SEPTEMBER 30, UNLESS THIS PERIOD IS EXTENDED BY RESOLUTION AFTER PUBLIC HEARING BY THE ROAD SERVICE AREA BOARD.] The permit may be obtained from the road service area administrative office by filing an application on a form provided by the borough.

C. Damage to right-of-way. Persons or entities using the right-of-way in a manner causing damage are liable to the borough for the cost of repair and subject to a fine set forth in KPB 14.40.260. Pursuant to AS 29.25.070, on application for injunctive relief and a finding of a violation or threatened violation, the superior court shall grant an injunction to stop or prevent damage to a right-of-way. The planning director shall issue fines under this section in accordance with KPB 14.40.260-270.

Section 6. KPB 14.40.150 is amended as follows:

14.40.150 Right-of-way use permits -- Repair and maintenance of rights-of-way.

The permittee has an ongoing responsibility to maintain the right-of-way in a condition equal to that which existed before the permittee's operation began so long as the maintenance required can be attributed to the permittee. The permittee shall repair the right-of-way immediately after discovery of any damage or deterioration caused by the permittee's use of the right-of-way. Such repair must return the right-of-way to at least the same condition as existed before the permittee damaged the right-of-way. In the event the permittee fails to comply with this section, the borough may repair the right-of-way at the permittee's expense 24 hours after giving the permittee telephonic or facsimile notice of the need for repair or maintenance. Repair costs may be deducted from the bond posted [FOR A SIZE AND WEIGHT PERMIT] or pursued through a personal action for right-of-way construction permits and size and weight permits. This section does not require a construction permittee to perform right-of-way maintenance after construction is completed.

Section 7. A new section, KPB 14.40.155, is enacted to read as follows:

14.40.155 Temporary road closure.

The roads director may temporarily close a road with a physical barricade and signage where damage to the right-of-way or a threat to public safety is presented by continued use of the road. The road may be reopened when the roads director determines that the condition causing the threat to public safety or damage to the right-of-way has been repaired or alleviated.

Section 8. KPB 14.40.190 is amended as follows:

14.40.190 Parking regulation -- No parking.

No person or entity may park a vehicle or other equipment within a right-of-way if it has been posted as a no parking area without written permission of the roads director or his designee. Nothing in this provision prevents the roads or planning director from requiring the removal of vehicles or other blockage from rights-of-way which are impeding the safe flow of traffic, or interfering with road maintenance.

Section 9. KPB 14.40.235 is enacted as follows:

14.40.235 Parking regulation -- blockage.

Notwithstanding the signage provisions of this regulation where a vehicle or other blockage is impeding the safe flow of traffic or borough road maintenance, the roads director or designee may tag the vehicle or blockage with a 48-hour warning to remove the vehicle or blockage from the right-of-way. If the vehicle or blockage is not removed within 48 hours, the borough may proceed to remove it at the owner's expense.

Section 10. KPB 14.40.260 is amended as follows:

14.40.260 Civil penalties -- Schedule.

In addition to other remedies afforded by law, the borough establishes the following schedule of civil fines for violation of KPB 14.14 and 14.40.

KPB 14.40.050 Unlawful Regulation of Traffic Flow; Barricading Right-of-Way $125.00
KPB 14.40.070(B) Failure to Attain Right-of-way Construction or Size and Weight Permit $250.00
KPB 14.40.060 Violation of Permit Conditions (each condition) $150.00
KPB 14.40.070(C) Damage to right-of-way $100.00
KPB 14.40.190 Parking Violation, First Offense $100.00
KPB 14.40.190 Parking Violation, Second Offense -- Same Owner/Same Vehicle $250.00
KPB 14.40.190 Parking Violation, Second Offense -- Same Owner/Different Vehicle $250.00
KPB 14.40.235 Parking Violation -- Impeding Traffic/Maintenance $100.00
KPB 14.40.270(B) Failure to Respond to Citation/Complaint $ 75.00



Each day a violation occurs constitutes a separate violation.

Section 11. KPB 14.40.270 is amended as follows:

14.40.270 Civil penalties -- Citation -- Answer -- Hearing -- Appeal.

C. Hearing. The hearing officer for [PARKING AND] oversize/overweight permit violations shall be the roads director. The hearing officer for parking and construction permit violations is the planning director. The director shall set the hearing giving at least 15 days notice of the date, time and place of the hearing. For good cause the director may delay the date of hearing. The director shall set the agenda for the hearing and may call witnesses and request additional evidence. The director may allow for telephonic participation in the hearing. If necessary the director may continue the hearing to gather additional evidence or take the subject matter of the hearing under advisement. Upon the presentation of the testimony, evidence, and witnesses the director shall issue a written decision with supporting findings and conclusions within five days of the hearing. The director may uphold the charge and fine, modify the charge, dismiss, or reduce the fine and issue whatever related compliance orders are necessary.

Section 12. KPB 14.40.280 is amended as follows to define terms used in this ordinance to aid interpretation:

14.40.280 Definitions.

J. "Road" means in this chapter a right-of-way which has undergone improvement by construction and placement of material making the surface of the right-of-way suitable for motor vehicles which may lawfully travel on state highways.

K. "Watercourse" means a running stream of water fed from natural or permanent sources such as rivers, creeks, glaciers, and rivulets which flows in a particular direction, though it need not flow continuously, and may be periodically dry. It must flow in a definite channel, having a bed or banks, and usually discharge itself into another stream or water body. It must be more than mere surface drainage.

SECTION 13. That this ordinance shall take effect immediately upon its enactment.

ENACTED BY THE ASSEMBLY OF THE KENAI PENINSULA BOROUGH THIS 16TH DAY OF JUNE, 1998.




















Jack Brown, Assembly President





ATTEST:






Linda S. Murphy, Borough Clerk