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Home My WebLink AboutRES2023-079 Laraux Lawsuit Sponsored by: Regis CITY OF SEWARD,ALASKA RESOLUTION 2023-079 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, APPROVING THE LAWFUL ACTION TO BRING SUIT AGAINST THE OWNER OF AN ABANDONED OR DERELICT VESSEL ON CITY TIDELANDS AND APPROPRIATING FUNDS IN AN AMOUNT NOT TO EXCEED$10,000. WHEREAS,the City leases the tideland property known by the legal description that PTN Within Section 1-3 Excl Seward Original Townsite Waterfront Park Replat And Excl That Portion Of The Seward Airport Known As The Avigation& Hazard Easement Area And Ed Ptn Known As The Alaska Railroad Terminal Reserve In Seward and located at TIS R1W SEC 1-3 Alaska Tide Land Survey#174 Amended Plat#55 from the State of Alaska; and WHEREAS, A vessel known as the LISA JD is currently located on that leased property and believed to be inoperable; and WHEREAS, abandonment of the vessel on city property is a trespass, violates Alaska Statute 09.45.230 (Private nuisance), violates Seward City Code § 10.15.015 and other city ordinances and is subject to fines and removal pursuant to Alaska Statutes, Title 30, Chapter 30; and WHEREAS, the vessel owner was formally notified of the need to,remove vessel in October of 2022, on January 13, 2023, March 17, 2023 and May 15, 2023; and WHEREAS, the Harbormaster and the City Attorney have also informally discussed removal of the vessel with the vessel owner; and WHEREAS, state law and city code provide processes for the city to remove the vessel and recover the costs of removal by selling the vessel; and WHEREAS,the cost of removal of the vessel likely exceeds the value of the vessel. Thus, a lawsuit to compel the owner to remove the vessel at his own expense or to allow the city to recover a judgment against the owner is preferable; and WHEREAS, City Council approval is sought to initiate a legal action to pursue civil fines and penalties, injunctive relief requiring removal of the vessel and prohibiting future trespasses, or authorizing the City to remove the vessel and recover its costs. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD,ALASKA that: Section 1. The City Council approves the lawful action to bring suit against the owner of the Lisa JD,a vessel unlawfully occupying city property to compel removal of the vessel and allow for a judgment of cost and other relief as necessary. CITY OF SEWARD, ALASKA RESOLUTION 2023-079 Section 2. Funding in the amount of$10,000 is hereby appropriated from Harbor Fund Unassigned Fund Balance account no. 11000-0000-3400 to Legal Services Expense account no. 11000-2000-7006 within the 2023 Operating Budget. Section 3. This resolution shall take effect immediately upon adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 10`1' day of July, 2023. THE CITY OF SEWARD, ALASKA StuAledtxt. Sue McClure, Mayor AYES: Finch, Osenga, Calhoon, Demoss, McClure NOES: None ABSENT: Wells, Barnwell ABSTAIN: None ATTEST: mai Kris Peck City Clerk �u��, _ sss OF SF (City Seal) SC.> ,. oRPOWQ%% :• of • •' SEAL `:• . "„;kOf AO`,.• `,.• City Council Agenda Statement Meeting Date: July 10, 2023 To: City Council From: Norm Regis, Acting City Manager Subject: Resolution 2023-079: Approving the Lawful Action to Bring Suit Against An Abandoned Vessel, the LISA JD, and Appropriating Funds in an amount Not to Exceed $10,000 Background and justification: The City of Seward leases a parcel of tidelands from the State of Alaska. The LISA JD is a vessel that is located on that parcel and is believed to be derelict and abandoned. It is unclear how or when the vessel arrived on the property, but it is clear that it has not moved in several years. It is a hazard and unauthorized in its current location. The City has communicated with the owner of the vessel multiple times, requesting it be moved. The owner has not made any substantial efforts to relocate the vessel. The objective of communication with the owner has been to move the vessel. Alaska common law permits a trespass claim against a person who makes an unauthorized entry upon the property of the claimant. Seward City Code 10.15.015 permits the City to dispose of abandoned property. Alaska Statute 09.45.230 et seq. provides for an action against private nuisances. AS 30.30.010 et seq. provides for the impoundment and removal of derelict vessels. These statutes would permit the City to exercise its authority to remove or dispose of the vessel. The vessel needs moved. It is clear that the owner is unable or unwilling to move it, despite being given ample time and opportunities to do so. A lawsuit is necessary for the City to exercise its statutory authority to remove the vessel. City Administration requests City Council approval to take legal action to ensure that the vessel can be moved and compliance with City Code and Alaska Statutes achieved. SCC 10.15.015 - Disposal of abandoned or stolen property; returning unclaimed property to finder. B. Other abandoned property. Any other abandoned property which is not turned over to the police department may be disposed of by the city manager in the following manner: The city manager or his deputy shall first determine whether or not the property is in fact abandoned property. If the property has been abandoned, and appears to have some value, it shall be disposed of at public auction in the same manner as provided in subsection (a) for property in the possession of the police department. If the property is not sold at public auction, or if the city manager shall determine that it is valueless and not sellable at public auction, it shall be disposed of as rubbish. (Ord. 378, 1971; Ord. 382, 1971) Page 1 of 3 305 AS § 09.45.230 Action based on private nuisance (a) A person may bring a civil action to enjoin or abate a private nuisance. Damages may be awarded in the action. AS § 09.45.255 Definition of nuisance In AS 09.45.230--09.45.255, "nuisance" means a substantial and unreasonable interference with the use or enjoyment of real property, including water. AS § 30.30.010 Abandonment of vessel unlawful (a) A person may not store or leave a derelict vessel (1) on the waters of the state or on state or municipal property without the consent of the state agency or municipality having jurisdiction over the water or property; or (2) at any private property without the consent of the owner of the property. (b) Except as provided under AS 30.30.110--30.30.150, a state agency, municipality, or peace officer may impound a derelict vessel subject to this chapter. . . (f) A person who violates this section, upon conviction, is guilty of a misdemeanor and is punishable by one or more of the following: (1) a fine of not less than $5,000 or more than $10,000; (2) imprisonment for a period of not more than 90 days; (3) forfeiture of the person's vessel. AS § 30.30.015. Civil penalties (a) The department, a municipality, or an aggrieved person may institute a civil action against a person who violates AS 30.30.010. In addition to injunctive and compensatory relief, a civil penalty of not more than $1,000 may be imposed for each violation. An action to enjoin a violation may be brought notwithstanding the availability of any other remedy. On application for injunctive relief and a finding that a person has violated AS 30.30.010, the superior court may grant the injunction. Each day that a violation occurs constitutes a separate violation. Comprehensive and Strategic Plan Consistency Information This legislation is consistent with (citation listed): Comprehensive Plan: 2.1, 2.2 Community Vision and Values Strategic Plan: Other: Certification of Funds Page 2 of 3 306 Total amount of funds listed in this legislation: $ 10,000 This legislation (✓): Creates revenue in the amount of: $ Creates expenditure in amount of: $ Creates a savings in the amount of: $ Has no fiscal impact Funds are (✓): Budgeted Line item(s): 11000-2000-7006 ✓ Not budgeted Not applicable Fund Balance Information Affected Fund (✓): General SMIC Electric Wastewater ✓ Harbor Parking F1 Water F1 Healthcare Motor Pool Other Note: amounts are unaudited Available Fund Balance $ Finance Director Signature: " Attorney Review ✓ Yes Attorney 74-4 Signature: Not applicable Comments: Administration Recommendation H Adopt Res. Other: Page 3 of 3 307