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26.0218 Motion for reconsideration and special land use permits.

Cite as [A.S.A.C. § 26.0218]

A. Motion for reconsideration

1. No appeal of a decision of the Board shall be allowed unless a motion for reconsideration is filed with the Board within ten (10) days of the Board decision being moved for reconsideration. Motions for reconsideration shall be heard by the Board at a regularly scheduled meeting or special meeting held for purpose of hearing the motion no less than ten (10) days and no more than thirty (30) days after the motion for reconsideration is filed. The moving party and any party who has filed written comments on the matter to be heard shall be given no less than seven (7) days notice of the hearing.

2. The motion for reconsideration shall contain following information:

a. Name, address and telephone number of the moving party and basis for standing as set forth in the provisions of this chapter;

b. A description of the decision being moved for reconsideration; and

c. A written statement of the factual or legal basis for the motion, including such new evidence as may be proffered.

3. The Board shall review the entire record of the matter moved for reconsideration, any new evidence submitted and arguments made, and rule on the motion de novo.

4. The Board, by majority vote, may grant or deny a motion for reconsideration, except that any decision to amend or overturn a land use permit decision requires a unanimous vote and shall contain written findings or fact and conclusions of law.

B. Special land use permits

1. A special land use permit to conduct acts prohibited by the provisions of this chapter may be requested by petition. An applicant may seek a special land use permit under the following procedures:

a. The applicant shall submit with the motion for reconsideration a petition for a special land use permit to the Director. The petition shall state facts sufficient to establish conformity with the special land use permit requirements listed below. The petition shall include all information required for a major project, all proposed actions to prevent adverse effects, all proposed actions to mitigate adverse effects or restore the site, and a statement indicating why the proposed action is necessary at the site in the manner proposed.

b. The Board may grant, by unanimous vote of the entire Board, a special land use permit, if the applicant demonstrates that:

(1) literal enforcement of the applicable provisions of the Act and the provisions of this chapter will cause the applicant undue hardship, excluding economic hardship; and

(2) such hardship results from conditions peculiar to the applicant’s property; and

(3) such conditions could not reasonably have been anticipated by the American Samoa Coastal Management Program when the provisions of this chapter were adopted; and

(4) the applicant’s plan for the proposed action minimizes any disturbance to the site and any affected area or neighboring property and demonstrates that all reasonable steps will be taken to restore and mitigate any adverse effects; and

(5) no other feasible alternative site exist; and

(6) the applicant agrees in writing to abide by the plan submitted under penalty of the total cost to restore the site to its existing conditions; and provided further that

(7) the land use permit application shall not be for an after-the-fact project, use or activity.

2. A petition for a special land use permit shall be reviewed and considered by the Board pursuant to the same procedures applicable to a major project, except that a public hearing shall be held, pursuant to the same notice requirements as for a public hearing on a major project.

a. If a special land use permit is granted by the Board, within thirty (30) days following the date of the decision, notice of same shall be published once a week for two (2) consecutive weeks in a newspaper of general circulation in the Territory which will provide the public an opportunity to appeal.

b. The Board’s denial of a special land use permit is final, the special land use permit applicant has no appeal rights.

3. Nothing herein shall be interpreted to exempt a special land use permit from the provisions of this chapter protecting Special Management Areas and wetlands.

History: Rule 8-80 (Ex. Ord. 03-80); ASCMP Reg. (Ex. Ord. 07-88); Rule 2-97, eff 4 Aug 97.