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HomeMy WebLinkAboutOrd1992-005 . . . Sponsored by: Schaefermeyer CITY OF SEWARD, ALASKA ORDINANCE NO. 92-05 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AMENDING SCC CHAPTER 7.05, ACQUISITION AND DISPOSAL OF REAL PROPERTY WHEREAS, the Alaska Statutes provide for certain preference rights regarding tide and submerged lands; and WHEREAS, a complementary city code provision is required as a condition to the city receiving tideland patent from the state; and WHEREAS, the city code is lacks specific direction relating to the disposition and acquisition of real property interest where no warranties are made and title is not transferred; and WHEREAS, other aspects of the city code relating to real property need general housekeeping. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA HEREBY ORDAINS that: Section 1. Chapter 7.05 Acquisition and Disposal of Real Property is hereby amended to read as follows: Article 1. Generally 7.05.110 Adoption of provisions and statutory authority. These regulations are adopted by the city council pursuant to authority vested in that body by the charter of the city and by the Alaska Land Act, AS 38.05.820, as amended. 7.05.115 Definitions. For purposes of this chapter, the terms defined have the meaning provided below unless the context requires otherwise. .. "City" means the city of Seward, Alaska. .. "Disposition" means the transfer of city interest in real property by warranty or quitclaim deed, easement, grant, permit, license, deed of trust, mortgage, contract of sale of real property, plat dedication, lease, tax deed, will, or any other lawful method or mode of conveyance or grant. . . . * "Acquisition" means to obtain ownership and to hold real property within or outside the city boundaries by purchase, gift, donation, grant, dedication, exchange, redemption, purchase or equity of redemption, operation, of law, tax or lien foreclosure, adverse possession, condemnation or declaration of taking, annexation, or by any other lawful means of conveyances. * "Fair market value" means the highest price, described in terms of money, which the property would bring if exposed for sale for a reasonable time in the open market, with a seller, willing but not forced to sell, and a buyer, willing but not forced to buy, both being fully informed of all the purposes for which the property is best adapted or could be used. * "Real property interest" means any estate in land, including tide and submerged lands, or improvements thereon. Rights-of-way, encroachments or easements wherein no warranties are made and title is not transferred are regarded as not involving the disposal of a party's interest in real property; thus, the execution of such documents are exempt from provisions of charter ~ 12.3 (b) and ~ 7.05.110, et seq. of this chapter. * "Submerged lands" means those lands covered by tidal waters between the line of mean low water and seaward to a distance of three geographical miles, or as may hereafter be properly claimed by the city. * "Tidelands" means those lands which are periodically covered by tidal waters between the elevation of mean high water and mean low water. 7.05.120 Alternative means of real property acquisition or disposition. The city council may acquire or dispose of an interest in real property by negotiation, public auction, or sealed bid. 7.05.125 Approval of form of purchase. etc.. instrument by city attorney. The city attorney shall approve as to form all transfer documents prior to the adoption of a resolution approving acquisition or disposition of real property. 7.05.130 Posting copy of resolution. Upon adoption of a resolution approving an acquisition or disposition, the city clerk shall cause a true copy of same to be posted for at least thirty days in at least three public places within the city. 7.05.135 Effectiveness of resolution. Objections to a resolution approving a real property acquisition or disposition may be made at any time until the resolution becomes effective. Unless rescinded or amended, any resolution adopted under this chapter automatically becomes effective thirty days after passage and posting. 7.05.140 Appraisal. A. The city shall not sell any real property interest without first making an appraisal of the fair market value of that interest, unless the city council finds that the public interest will not be served by an appraisal. B. If an appraisal is made, the property interest shall not be sold for less than the appraised fair market value, unless the city council finds that the public interest will be served by selling the property interest for less than the appraised fair market value. . . . CITY OF SEWARD, ALASKA ORDINANCE NO. 92-05 7.05.145 Notice of foreclosure sale. Before property obtained through a foreclosure may be sold, notice of such sale must be sent by registered or certified mail to the last known address of the record owner at the time the foreclosure action was initiated. The notice shall be mailed at least thirty days prior to the effective date of sale. It shall contain the following information: 1. the time and date of sale; 2. the manner of sale; 3. the place of sale; and 4. notice that until the effective time of sale the record owner has the right to repurchase the property as provided by AS 9.45.170 through 9.45.220. Article 2. Disposition of Real Property by Negotiation 7.05.210 Public hearing and notice. Prior to disposition or acquisition of real property interest by negotiation, a public hearing shall be held. Notice of the public hearing shall be published in a newspaper of general circulation in the city and shall be posted in at least three public places within the city. Both posting and publication shall be done at least ten days prior to the hearing. 7.05.215 Terms and conditions to be made available. In the case of disposition by negotiation, the notice of public hearing shall indicate where the public may obtain the essential terms and conditions of the proposed disposition. A copy of the terms and conditions shall be maintained for inspection at the office of the city clerk for at least ten days prior to the hearing. 7.05.220 Resolution to approve terms and conditions. At any time after the hearing required by ~ 7.05.210, the council shall may: make a finding in a resolution containing the essential terms and conditions of the acquisition or disposition that the public interest will be served thereby. Such resolution may contain a finding under ~ 7.01.130 that an appraisal of the fair market value of the property would not be in the public interest. Article 3. Disposition of Real Property by Public Auction or Sealed Bid 7.05.310 Public hearing and notice: resolution. A. The city council may, by resolution following public hearing, find it in the public interest to dispose of real property by public auction or sealed bid. Notice of the public hearing shall be published in a newspaper of general circulation in the city and shall be posted in at least three public 3 . . . CITY OF SEWARD, ALASKA ORDINANCE NO. 92-05 places in the city. Both posting and publication shall be done at least ten days prior to the hearing. B. The resolution authorizing the sale of real property by public auction or sealed bid shall set forth the terms and conditions of the public sale. The council shall reserve the right to reject any and all bids received. The resolution shall provide if the sale is for cash, or cash deposit and a purchase agreement. If the sale is for a cash deposit and a purchase agreement, the city manager shall prescribe the form of the purchase agreement. C. The city manager shall designate the individual who shall conduct the sale, and such designee shall give the bidder a receipt for all moneys received by the city. A purchaser at a public sale by auction or sealed bid who fails to make such other cash payments within the time required by the resolution shall forfeit any cash deposit paid to the city. 7.05.315 Location and notice of sale. The public sale by auction shall take place at a location within the city limits as selected by the city manager. Notice of public sale by auction or sealed bid shall be published at least once in a newspaper of general circulation in the city and such other newspapers as the city manager deems advisable, and such notice shall be posted in at least three public places within the city. Both posting and publication of the notice of sale shall be done at least ten days prior to the date of sale. 7.05.320 Procedure for sale by sealed bid. All real property interests offered for public sale by sealed bid may be sold to any person submitting an offer in writing to the council. Such offer shall be submitted in a sealed envelope marked "Real Property Bid" and must be accompanied by a check or money order made payable to the city in an amount equal to at least twenty percent of the amount bid for residential lots and ten percent of the amount bid for other parcels. 7.05.325 Selection of successful bidder(s). If there is more than one bid, at a public auction or by sealed bid, for a particular lot or group of lots, the lot(s) shall be sold to the highest bidder(s). The highest bidder(s) shall be the one(s) whose bid(s) represents the highest total price for the property interest(s). In the event that two or more parties submit high but identical bids, the council may accept the bid first received, or reject all bids. 7.05.330 Resolution accepting bids. After a sale has been conducted by public auction or sealed bid, the council, by resolution with or without public hearing, may approve all public sales of real property based on the bids received, and shall approve any purchase agreement prior to its execution by the city. The approval of any public sale by the council authorizes the city manager to take all steps and execute all instruments to complete and close the sale. 4 . . . CITY OF SEWARD, ALASKA ORDINANCE NO. 92-05 Article 4. Short-Term Lease Negotiation 7.05.410 City manager authorized to negotiated short-term leases. Nothing in this chapter shall prevent the city manager from negotiating short-term leases of city property subject to council approval at the next regularly scheduled city council meeting. Such leases shall not be subject to the public hearing process, shall not exceed one hundred twenty days in length, and shall contain no provisions for optional terms. The resolution approving such a lease may be signed and adopted immediately provided the lease form contains a provision stating that the lease is subject to suspension during the first thirty days after passage of the resolution if a sufficient referendary petition is filed in accordance with ~ 4.8 of the city charter. Article 5. Encroachments. easement and rights-of-way. 7.05.510 Encroachments. easements and rights-of-way. A. Subject to applicable provisions of the Kenai Peninsula Borough Code, Title 20 Subdivisions, the city manager may, with regard to city land, negotiate and execute rights-of-way and easements not exceeding a term of 20 years, and encroachments for the life of the encroaching structure, subject to requiring the private party to: 1. pay an appropriate feej 2. secure insurance coverage to protect, defend, and indemnify the cityj 3. maintain the property in such a manner as to protect the public safety and welfarej 4. restore the property at the expiration of the agreementj and 5. provide other assurances as deemed appropriate by the city manager in order to protect the public interest. B. The city manager may negotiate and execute the acquisition of rights-of-way, encroachments and easements necessary for a utility, public improvement or other public use except the city council shall, by resolution, approve acquisitions involving cash considerations or the exchange of real property valued in excess of $ 10,000. C. Any other rights-of-way, encroachments and easements shall be granted or acquired only upon approval of the city council. D. The city manager may, at the direction of the city council convey, quitclaim, release, cancel, or otherwise relinquish any real property easement, right-of-way, permit or license the city may have or hold for the purpose of installing, constructing, or 5 . . . CITY OF SEWARD, ALASKA ORDINANCE NO. 92-05 maintenance of a public improvement or utility, whenever the interest is no longer used or useful for that purpose. Article 6. Tidelands 7.05.610 Purpose. These regulations implement, interpret and apply the provisions of the Alaska Land Act concerning use and disposal of tide and submerged lands and related matters and extend to and include the applicable provisions of Public Law 85-303. 7.05.615 Definitions. For purposes of this article, the following terms shall be defined as follows: * "Coast line" means the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters. * "Improvements and Substantial Permanent Improvements" means buildings, wharves, piers, drydocks and other similar types of structures permanently fixed to the tidelands or contiguous submerged lands that were constructed and/or maintained by the applicant for commercial, recreation, residential, or other beneficial uses or purposes. In no event shall fill be considered a permanent improvement when placed on tidelands solely for the purposes of disposing of waste or spoils. However, fill material actually utilized for beneficial purposes by the applicant shall be considered a permanent improvement. * "Mean low or lower water" means the tide datum plane of the average of the low tides as has been or may be established by the United States Coast and Geodetic Survey. * "Mean high tide " means the tidal datum plane of the average of all the high tides as has been or may be established by the United States Coast and Geodetic Survey. * "Mean high water line" shall be interpreted as the intersection of the datum plane of mean high water with the shore. * "Occupant" means any person as defined herein, or his successor in interest, who actually occupied for any business, residential, or other beneficial purpose, tidelands, or tidelands and submerged lands contiguous thereto, within the city, on or prior to January 3,1959, with substantial permanent improvements. The holder of a permit of clearance in respect to interference of navigation, or of a special use permit from a government agency will not qualify as an "occupant" unless such entry on the land had, through 6 . . . CITY OF SEWARD, ALASKA ORDINANCE NO. 92-05 exercise of reasonable diligence, resulted in actual occupancy and substantial permanent improvements as hereinafter mentioned. No person shall be considered an occupant by reason of having (a) placed a fish trap in a position for operation or storage upon the tide, shore, or submerged land; (b) placed a set net or piling thereof or any other device or facility for taking of fish; (c) placed pilings or dolphins for log storage or other moorage; (d) placed floats or vessels upon the tide, shore or submerged land; (e) placed telephone, power or other transmission facilities, roads, trails or other improvements not requiring exclusive use or possession of tide or contiguous submerged lands; or (f) claimed the land by virtue of some form of constructive occupancy. Where land is occupied by a person other than the owner of the improvements thereon, the owner of the improvements shall, for the purposes this definition, be considered the occupant of such lands. * "Occupied and developed" means the actual use, control, and occupancy, but not necessarily residence, of the tide and contiguous submerged land by the establishment thereon of substantial permanent improvements. * "Permit preference" means the privilege of the upland owner to acquire first choice over other non-preference right claimants to a permit for like use and enjoyment of city owned tide or contiguous submerged lands abutting his property. * "Person" means any person, firm, organization, cooperative association, partnership or other entity legally capable of owning land or an interest therein. * "Pierhead line" means the line fixed by the Department of the Army Corps of Engineers that is parallel to the existing mean low tide line at such distance offshore from the mean low tide line that the pierhead line shall encompass, landward and no more, all stationary man-made structures (but shall not encompass any part of breakwaters, bridges, or piers used for vessel dockage which part extends beyond such a parallel line marking the seaward extremity of other man-made structures) which were in existence as of February 1, 1957, to seaward of the city. * "Preference Right" subject to the established classifications, means and includes the right of an occupant to acquire by grant, purchase, or otherwise, at the election of the occupant, except as otherwise limited or prescribed in these regulations, any tract or tracts of tidelands, or tide and submerged land contiguous thereto, occupied or developed by such occupant on and prior to January 3,1959. * "Preference Right, Class I" means a right claimed by persons who occupied and developed tide and contiguous submerged lands seaward of the city on and prior to September 7, 1957, after executing a waiver to the city and state of all right such occupant may have had pursuant to Public Law 85-303. Upon execution of the waiver, such persons or their successors in interest have the right to acquire such occupied and 7 . . . CITY OF SEWARD, ALASKA ORDINANCE NO. 92-05 developed tide and contiguous submerged lands from the city for consideration not in excess of the cost of survey, transferring and conveying of title. * "Preference Right, Class II" means a right claimed by Class I Preference Right claimants who decline to execute a waiver to the state and city of any rights such occupants may have acquired pursuant to Public Law 85-303 (71 Stat. 623). It shall be mandatory for the city to honor the application from the occupant after the Secretary of the Army has submitted to the Secretary of the Interior, the Governor of Alaska and the city manager, maps showing the pierhead line established by the Corps of Engineers with respect to the land claimed. Upon proof of such occupancy, such persons have the right to acquire such tide lands and contiguous submerged lands from the city for a consideration not in excess of the cost of survey, transferring and conveying title. * "Preference Right, Class III" means a right claimed by persons who occupied and developed tidelands and contiguous submerged lands after September 7,1957, and who continued to occupy them on January 3, 1959. Upon proof of such occupancy, such persons have the right to acquire such tidelands and contiguous submerged lands for a consideration not in excess of the cost of appraisal, survey, administering and transferring title, plus the appraised fair market value of the land claimed, exclusive of any value accruing from improvements or development, such as fill material, buildings or structures. * "Upland Owner" means that land owner whose upland property abuts the line of mean high tide. 7.05.620 Preference to upland owners. Should the city decide to dispose of interest in any tide or submerged land, the city shall grant to the owner of upland property adjacent to said tide and submerged land a first preference to acquire said interest over other applicants/bidders. The upland owner shall be notified by certified mail or by a posting of a notice for three consecutive weeks of his right to exercise his preference. The upland owner shall then have ninety days to exercise this preference under this section. If the preference is not exercised by the upland owner, then the city may dispose of the tide and submerged land to others. It shall not be required that the city offer its tide and submerged lands for disposal should the city determine that it is not in its best interests to dispose of such land. The city may itself make such use of its tide and submerged lands as it may consider in the public interest without offering the tide and submerged lands to others. 7.05.625 Preference Right Application. An occupant claiming a Class I, Class II, or Class III Preference right may apply for Preference Rights within two years from the effective date of the ordinance adopting these regulations. Any Preference Right for which an application is not filed within this period shall be forfeited. Completed applications shall be submitted to the city manager on forms supplied by the city. 8 . . CITY OF SEWARD, ALASKA ORDINANCE NO. 92-05 Section 2. This ordinance shall take effect ten (10) days following its enactment. ENACTED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, this 23rd day of March, 1992. AYES: NOES: ABSENT: ABSTAIN: ATTEST: THE CITY OF SEWARD, ALASKA _, J i j, . - <, 1~' . 6~N~ti ~~-~~PP~\i\YOR Bencardino, Cripps, Dunham, Krasnansky, Swartz and White None Crane None . (City Seal) APPROVED AS TO FORM: PERKINS COlE, Attorneys for the City of Seward, Alaska ~Ji/L Fred B. Arvidson City Attorney Introduced By: Crane/Dunham Introduction Date: 03/09/92 Public Hearing & Enactment Date: 03/23/92 9