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Stream ordinance petition denied

Posted: June 6, 2012 - 8:42am

Kenai Peninsula Borough officials last week denied a petition application that would have led to a citizen vote deciding the fate of the anadromous stream protection ordinance.

The group Citizens 4 Responsible Waterfront Land Use filed a referendum petition in hopes of scratching Ordinance 2011-12, which was approved by the assembly last summer and implemented for the west side of the borough at the beginning of this year.

In a press release, the group stated it was comprised of concerned property owners who felt the ordinance was too far reaching. Among other claims, the group said the borough did not notice affected property owners before the ordinance was voted on, the rules it creates and its permitting system are "onerous," it adds another "costly" layer of borough government and was enacted without analysis of manpower, cost or means required to enforce it.

In a letter to Fred Braun of the C4RWLU group, borough clerk Johni Blankenship wrote the referendum petition "directly conflicts with the ... (Alaska statute) delegation of planning and land use decision-making to the assembly and is rejected."

"The assembly could not refer a zoning ordinance to the voters, therefore, the voters cannot do so through direct legislation," the letter reads.

Currently, the Kenai River, 10 of its tributaries and 14 other streams in the area, are managed under habitat protection. The anadromous streams ordinance passed in late June 2011 added 2,317 stream miles to the 602 stream miles previously included in the district.

The ordinance protects the near-stream habitat of all anadromous streams -- which host fish that migrate from the sea and breed in fresh water -- in the borough 50 feet up the bank from the ordinary high water mark. The idea is by protecting the habitat, the safety and future of the fish -- primarily salmon -- are better secured, advocates of the measure contend.

Borough code on the issue includes a prior use rule, creates tax incentives for improvement and compliance and creates a permitting system for property owners to receive approval for projects on their property in the protection district. Implementation for the east side of the borough is scheduled for January 2013, but notice of the ordinance's rules and regulations has already been mailed out to some areas.

In the letter, the borough cited a previous court case dealing with changes to another borough's planning and zoning. According to the borough, state law requires all boroughs to enact a plan for organized development, including development of statements, goals, standards and maps. The borough writes the anadromous streams ordinance is consistent with that plan. The legal case it referenced stated it "would conflict with state law for the assembly to be divested of these powers."

Allowing a vote to repeal an ordinance consistent with the borough's comprehensive plan "undermines" planning commission and assembly authority over its land use regulations and authority to adopt the comprehensive plan, the borough wrote in the letter.

"If direct legislation can be used to undermine the policy decisions of the assembly, then the comprehensive plan becomes a hollow document that does not need to be followed in contradiction to Alaska law," the letter reads.

Kenai Peninsula Borough Mayor Mike Navarre said he thought the letter's rational was accurate.

"If you can't put something in place by referendum, it makes sense that it can't be repealed either," he said.

Navarre said he would revisit some of the issues brought up by property owners in a "deliberative manner" so the public could comment and understand the impacts and rationale.

"What the impacts are, how to balance the need to protect anadromous lakes and streams that are important to the fisheries resources and the economy that's built around fisheries resources with property rights and what makes sense from a management standpoint," he said.

Any changes or public recommendations from those discussions would then be addressed before the ordinance is fully implemented in 2013 or possibly later, Navarre said.

"There's clearly a lot of angst among the public," he said. "... There's concern -- some of it I think is speculative and some of it is probably based on some perceptions rather than accurate information. But the reality is there are a lot of concerns and I think both the assembly, and certainly I as mayor, take that seriously."

Mike McBride, a member of the C4RWLU group, questioned several things included in the letter, including the borough's language about planning and zoning.

"The borough is admitting they have zoning powers, which to be honest with you I didn't know they had," he said. "In the past, every time they have tried to get zoning powers, the people have been adamantly against the borough having zoning powers."

McBride also mentioned the state constitution's guidelines on "the right to direct democracy." He said a voter initiative is the "cleanest thing" residents can do to exercise those rights "and the borough is saying, 'No, you can't do that.'"

"It seems like time after time after time the Kenai Borough is rejecting petitions citing all kinds of legal mumbo-jumbo like they do, but the bottom line is they are denying the constitutionally guaranteed right of the people to petition the government," he said.

McBride said the group met to talk about the petition rejection Monday and decided it would take several actions including lobbying the assembly for repeal of the ordinance, lobbying the state legislature to repeal planning and zoning powers for second class boroughs, finding and supporting more conservative candidates for the assembly starting with this October's election and reviewing the constitutional issues of the matter. McBride said the group decided against filing litigation against the borough clerk's decision.

"We've got more people that are coming in all of the time who are interested in getting involved," he said. "I have a feeling this thing is going to grow."

Brian Smith can be reached at brian.smith@peninsulaclarion.com.

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