What is “planning power”?
The term “planning power” means the authority for planning, platting, and land use regulation as provided for in Alaska Statutes and, if applicable, home rule charter.
The Alaska Statutes require that first class, second class, and home rule boroughs (including unified municipalities) provide for planning, platting, and land use regulation. According to AS 29.35.180, a first class or second class borough and unified municipalities shall provide for planning, platting, and land use regulation in accordance with AS 29.40. A home rule borough (including unified municipalities) shall provide for planning, platting, and land use regulation, but a home rule borough is not bound by AS 29.40.
According to AS 29.40.010(b), a borough must exercise the planning power on an areawide basis (meaning both inside and outside its cities). However, a borough may delegate its planning powers and duties to a city inside the borough, if the city agrees to the delegation. Whether the city provides for planning, platting, and land use regulation in accordance with AS 29.40 depends on whether the borough is required to carry out its planning power in accordance with AS 29.40.
AS 29.35.260 requires that first class and home rule cities outside of boroughs provide for planning, platting and land use regulation. A home rule city outside a borough shall provide for planning, platting, and land use regulation, but the city is not bound by AS 29.40. A first class city outside a borough shall provide for planning, platting and land use regulation in accordance with AS 29.40.
AS 29.35.260 also provides that a second class city outside a borough may provide for planning, platting, and land use regulation. A second class city assuming this authority must act in accordance with AS 29.40. There are specific requirements regarding recordation (AS 40.15) and requirements for plat approval (AS 29.40) that need to be in place before a second class city engages in platting activity.
Does a municipality need a comprehensive plan before it can adopt a zoning or subdivision ordinance?
Yes. According to AS 29.40.040, a municipality must have a comprehensive plan in place (legally adopted by ordinance) before it adopts land use regulations such as zoning and land use permits. In the Lazy Mountain Land Club v. Matanuska Susitna Borough court case, the Alaska Supreme Court made it clear that before a municipality may implement zoning regulations, it must have a comprehensive plan in place.
Although there is no similar requirement for the adoption of a subdivision ordinance found in AS 29.40.070, some may argue that a subdivision ordinance is a land use regulation. In any event, having a comprehensive plan in place before adopting a subdivision ordinance is recommended. Knowing how and where development may occur in the community helps ensure subdivision takes into consideration existing and planned road layout, utility extensions, building density, and other issues.
Is the borough responsible for preparing its community plan?
Yes. The Alaska Statutes (AS 29.35.180) require that first class, second class, and home rule boroughs (including unified municipalities) provide for planning, platting, and land use regulation. This statute also provides that a first class or second class borough, but not a home rule borough, must meet the requirements of AS 29.40, which provides a detailed process for preparing and implementing a plan. A home rule borough or unified municipality may follow the planning process outlined in its charter.
How does the borough’s planning authority affect a city within the borough?
According to AS 29.40.010(b), a borough must exercise its planning power on an areawide basis. A borough may delegate its planning powers and duties to a city inside the borough if the city agrees to the delegation. This delegation may be canceled by the delegating borough without city approval.
Although a borough is responsible for planning within the borough, the statutes give a fairly broad definition of what constitutes a plan, providing flexibility in how the borough implements the planning power. According to AS 29.40.030, the comprehensive plan is a compilation of policy statements, goals, standards, and maps for guiding the physical, social, and economic development of the borough and may include statements of policies, goals, and standards; a land use plan; a community facilities plan; a transportation plan; and recommendations for implementing the plan. Thus, a borough doesn’t have to start from scratch to prepare a community plan document to satisfy its obligation to implement the planning power; the comprehensive plan can consist of policy statements and other documentation.
What entity approves a subdivision plat?
The entity approving a subdivision plat varies depending on whether the subdivision is located within an organized or unorganized borough and whether the platting authority has enacted an ordinance to authorize plat approval. According to AS 40.15.070, if a municipality is exercising its platting authority through a subdivision ordinance, the municipality is the entity that approves a subdivision as provided by the ordinance. If a municipality has not adopted a subdivision ordinance or if the subdivision is in an unorganized borough, the State Department of Natural Resources (DNR) is the platting authority responsible for approving a subdivision plat.
How does the planning power differ for a home rule municipality and a general law municipality?
The planning power of a general law municipality and implementation of that power is defined in statute. The planning power of a home rule municipality and implementation of that power is defined by its home rule charter.
Do municipal land use and subdivision regulations apply to state land?
Generally, the answer is yes. Several statutes apply to state land affected by municipal land use and subdivision regulations. According to AS 35.30.020, “A department shall comply with local planning and zoning ordinances and other regulations in the same manner and to the same extent as other landowners.” AS 35.30.030 authorizes a waiver, “If a department clearly demonstrates an overriding state interest, waiver of local planning authority approval and the compliance requirement may be granted by the governor.”
AS 40.15.200 states that a subdivision of land made by the state is subject to the provisions of AS 29.40.070–160, which provide the platting process to be used by general law municipalities, or provisions of home rule ordinances or regulations governing subdivisions. AS 40.15.200 also provides that platting and land use of that subdivision shall comply with other local ordinances and regulations in the same manner and to the same extent as subdivisions made by other landowners. AS 29.40.200, places some limits on a municipality regarding review of a subdivision of state land for disposal and a 60-day time limit for review.
AS 09.55.275 states, “An agency of the state or municipality may not acquire property located within a municipality exercising the powers of land use regulation provided by AS 29.35.180 or 29.35.260(c) that results in a boundary change unless the agency or municipality first obtains from the municipal platting authority approval of a replat. However, if a state agency can demonstrate an overriding state interest, the governor may grant a waiver to this requirement.”
According to AS 38.04.045, a plat for a subdivision of state land shall comply with local ordinances and regulations in the same manner and to the same extent as a plat for a subdivision by other landowners.
How do municipal and state land use plans affect each other?
AS 38.04.065 provides that the commissioner of the DNR shall work with local governments when adopting or revising a regional land use plan for the use and management of state lands. The DNR may adopt as a land use plan a comprehensive plan adopted by a municipality if the commissioner determines that the plan adequately recognizes and protects state interests.
Do municipal land use and subdivision regulations apply to state projects?
Generally, the answer is yes. According to AS 35.30.020, “A department shall comply with local planning and zoning ordinances and other regulations in the same manner and to the same extent as other landowners.” However, AS 35.30.030 states, “If a department clearly demonstrates an overriding state interest, waiver of local planning authority approval and the compliance requirement may be granted by the governor.”
According to AS 35.30.010, except for some highway and local service road projects, the Alaska Department of Transportation and Public Facilities (DOT/PF) shall submit project plans to the municipal planning commission for review and approval.
AS 46.40.100 requires state agencies to administer land and water use regulations and controls in conformance with approved district coastal management programs.
Do municipal land use and subdivision regulations apply to federal land or projects?
Public Law 100-678 mandates three relevant conditions:
Buildings constructed or altered by a federal agency must comply with nationally recognized model building codes and with local zoning laws and other local requirements.
State and local government consultation, review, and inspection must be provided.
The administrator or appropriate agency must give due consideration to state and local government recommendations.
The federal Coastal Zone Management Act of 1972 requires that most actions taken by federal agencies be consistent with state coastal management programs. Because approved district (local coastal management) plans are, by state law, incorporated into the Alaska Coastal Management Program, most federal and federally funded projects and other actions taken by federal agencies must be consistent with district plans. Activities on federal land are subject to consistency only to the extent the activity has off-site impacts.
Do municipal land use and subdivision regulations apply to Native allotments and restricted Native townsites?
There are varying opinions on this issue. Below are two professional opinions that point out practical reasons for application of land use regulation as a matter of health, safety, and future commercial value of the property.
An October 12, 2000 U.S. Department of Interior Regional Solicitor’s Opinion (BIA:AK.0729)
“… it is in the allotment owners own commercial self-interest to voluntarily comply with the state laws relating to subdivisions, so that prospective purchasers will be encouraged and enabled to do business with him or her. A Plat cannot be recorded unless it is approved by the platting authority, and it will not be approved unless it includes appropriate dedications.”
A similar notion had been stated in a letter dated October 10, 1983 from then Director of the State Department of Natural Resources, Tom Hawkins, to Assistant Attorney General Laura L. Davis, wherein he relayed his prior experience as chairman of the Dillingham Planning Commission as follows:
“Your proposal to pursue an agreement with federal officials has merit.” “… we stopped short of answering the “authority” question and agreed that for consistency purposes and downstream marketability reasons, it was in BIA’s and the allottees’ best interest to conform to local platting standards. The BIA agreed and offered all of its plats for commission review.”
[Editor’s note: 25 CFR 1.4 (b) authorizes the Secretary of Interior to adopt or make applicable local regulation regarding use of, and restrictions or limitations on the use of Indian lands.]
Bureau of Indian Affairs (BIA) regulations, 25 CFR 1.4, say that zoning and other regulations are not applicable to property leased from, held, or used under agreement with and belonging to any Indian or Indian tribe that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States.
In a 1994 letter to the City of Quinhagak, the Department of Community and Regional Affairs concluded that the city has the authority to condemn a certified Native allotment, subject to the city enacting an ordinance and following the condemnation procedures outlined in AS 09.55.240 - 460.