§ 21.50.130. Hearing.

A.

A matter shall proceed to hearing only on those allegations and claims in the enforcement notice that a respondent has contested. A respondent contests an allegation or claim in an enforcement notice issued pursuant to KPB 21.50.100(A) by denying the allegation or claim in the respondent's written response to the enforcement notice. If an allegation or claim is not contested by any respondent, that allegation or claim shall be treated as resolved in favor of the borough, and the hearing shall not include the taking of evidence or argument regarding that allegation or claim. If no allegations or claims in the enforcement notice are contested, the matter shall proceed to a decision by the hearing officer without the taking of evidence or argument.

B.

The hearing officer shall set the agenda for the hearing and may call witnesses and request additional evidence. The hearing shall be open to the public. The hearing officer may permit telephonic participation in the hearing by a party or witness. The hearing officer may continue the hearing if necessary to obtain additional evidence. An electronic recording shall be made of the hearing.

C.

At the hearing parties may appear in person or through counsel, present evidence and testimony on their own behalf, call witnesses, and cross examine other parties' witnesses to the extent the hearing officer determines to be reasonably necessary to explore any matters which tend to contradict, modify, or explain testimony given on direct.

D.

Evidence.

1.

All testimony shall be given under oath or affirmation.

2.

The hearing officer is authorized to admit or exclude evidence and to rule upon all objections regarding evidence. The hearing officer may exclude irrelevant, immaterial or unduly repetitious evidence. The hearing officer shall give effect to the rules of privilege recognized by the Alaska Rules of Evidence. An erroneous ruling on the admission or exclusion of evidence shall not affect the validity of the hearing officer's decision unless the ruling is shown to have substantially prejudiced the rights of a party.

3.

Relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of a common law or statutory rule which makes improper the admission of the evidence over objection in a civil action. Hearsay evidence may be considered provided there are guarantees of its trustworthiness and that it is more probative on the point for which it is offered than any other evidence which the proponent can procure by reasonable efforts.

4.

The hearing officer may take notice of judicially recognizable facts. The hearing officer shall notify the parties during the proceeding, and before the final decision, of material officially noticed and they shall be afforded an opportunity to contest the facts so noticed.

E.

The borough bears the burden of proof by preponderance of the evidence regarding the existence of a violation, the identity of the violator, and appropriateness of the relief or penalty requested for the violation.

F.

The hearing officer may interpret and apply any provision of this title, applicable planning documents, policies, regulations and the local comprehensive plan that is at issue at the hearing. The hearing officer is not authorized to consider arguments that a provision of this title or the local comprehensive plan is invalid or unconstitutional, which shall be reserved for appeal to the superior court. The hearing officer is not authorized to grant variances from the provisions of this title.

G.

Within 10 days after completion of the presentation of evidence, and any closing argument that the hearing officer may permit, the hearing officer shall issue a written decision on all matters at issue under the enforcement notice, with supporting findings of fact and conclusions of law. The borough clerk shall distribute the decision to each party by personal delivery or certified mail, or by facsimile or email to a party who has consented in writing to service by facsimile or email. The decision shall include a concise disposition statement either prescribing the fine imposed and the remedy for each violation, dismissing the enforcement notice, or declaring such other specific relief ordered by the hearing officer within the hearing officer's jurisdiction as defined by KPB 21.50.110(B) A decision shall also identify the violator or violators to whom the remedy applies and indicate that it is appealable and set forth the method and timing for such appeal. The remedies may include:

1.

An order to a violator to correct or abate the violation within a specified time, including without limitation any of the following:

a.

To discontinue a use of land or a structure;

b.

To abate or remove a condition or use of land, a structure, or a vehicle or other personal property

c.

To repair, restore, modify or improve land or a structure;

d.

To install any equipment necessary to correct or abate the violation;

e.

To provide a certification by a licensed professional, including without limitation an engineer, surveyor, hydrologist or biologist, that a violation has been corrected or abated to the administrative official designated in the enforcement order.

2.

An order to a violator to pay to the borough a fine. The fine shall not exceed $500 for each day of each such violation. Fines shall accrue from the date of the enforcement notice to the date the matter is initially set for hearing. Accumulated fines for each violation may not be reduced by the hearing officer to less than the equivalent of one day's fine. The hearing officer may suspend a portion of a fine for a violation as a condition of compliance with other portions of the decision. If a suspension of fine is ordered the respondent must pay not less than the equivalent of a one day fine. The hearing officer may not reduce or waive the double permit fee required by KPB 21.50.055(B). The fine shall be paid to the borough clerk who shall notify the administration of compliance with the order.

3.

An order revoking a permit issued pursuant to this title.

H.

In the case of an order under subsection G.1 the hearing officer retains jurisdiction of the matter, unless appealed, and the borough may apply to the hearing officer for additional relief to enforce compliance with the order. Such an application shall be processed in the same manner as an enforcement notice under KPB 21.50.100 through 21.50.130. Such an application is not exclusive of any other remedy that is available to the borough under this chapter or at law or in equity.

I.

Violation of an enforcement order requiring actions set forth in KPB 21.50.130(G)(1) is a separate violation of this chapter.

(Ord. No. 2016-03 (Sub.) , § 12, 5-3-16; Ord. No. 2015-23 , § 6, 8-18-15; Ord. No. 2011-34, § 2, 10-11-11)