Paul Ostrander, Kenai Peninsula Borough chief of staff, said misinformation about the borough’s anadromous streams habitat protection ordinance is spreading fear among area residents and those erroneous allegations need to be squelched.
Ostrander, who made his comment at Thursday’s Anadromous Fish Habitat Protection Task Force meeting, said those fears are distracting to the work of the task force and are muddying the waters during a process meant to clear them.
“We need to make sure we squash (misinformation) as much as we possibly can,” he said. “When someone says, ‘Oh yeah, I heard that an old man got arrested for mowing his lawn in the (habitat protection) district,’ we need to say, ‘That is not true.’ That’s not true. It didn’t happen. It never will.
“When someone says, ‘Oh, you’ve got to tear down your house when they enact this ordinance,’ that’s not true. We need make sure that we are getting out the truth as much as we can because right now the thing that is causing significant issues is because there is a ton of misinformation out there.”
In keeping with that comment, Ostrander earlier in the meeting called for borough resource planner John Czarnezki to present the task force an overview of the borough’s habitat protection tax credits, property tax exemptions and permitted activities with the 50-foot protection district.
Activities that do not require a permit, Czarnezki said, include non-commercial, recreational and other non-intrusive activities that do not involve construction, excavation or filling of land and do not result in erosion, damage to the habitat protection district or increase water pollution.
“So this could be everything from fishing, hiking, picnicking, berry picking, hunting — those types of activities do not require a permit,” he said.
Things requiring a staff permit include minor vegetation management such as trimming, pruning and removal of hazardous trees, installing elevated light-penetrating structures, installing a fish cleaning station meeting certain requirements and performing bank restoration and protection projects.
The last types of use require a conditional use permit, which Czarnezki said is not handled by staff, but rather goes to the borough planning commission for a decision.
There are 10 types of conditional uses that can be applied for in the habitat protection district including fish cleaning stations not meeting standards, fences, signs, publicly-owned facilities like parks and campgrounds with related structures, transportation and utility infrastructure, structures compliant with the Americans with Disabilities Act and elevated light-penetrating structures not meeting code, wells and waterlines, lifts and boat launches established to serve the public.
“Finally, a principle structure or an addition to a principle structure can be approved under the conditional use permit process if a number of standards are met and that was added here recently ... to provide owners of small lots that may not meet the basic standards of the code ... to still construct a structure on a property,” he said.
Czarnezki also spoke about the ordinance’s prior existing activities and structures section that allows for activities to occur if they existed before the ordinance was enacted.
“Basically this is the grandfathering section,” Czarnezki said. “It is the intent of this section to permit these prior uses and structures to continue, but not to be increased, expanded or intensified.”
That section of the code is broken into structures and uses.
“So if a structure was constructed prior to the effective date of the code, you are allowed to continue to use it,” he said. “Basically this part of the code says that you can maintain that structure, however, if there is a major flood event or any other act of God ... it allows that person within two years to reconstruct that (principle) structure even if it is noncompliant … to the same size and location.”
Accessory structures, however, may not be replaced or reconstructed in a mapped flood plain.
The property owner would also have to “document the specific circumstances that would prevent them from locating that structure outside of that 50 foot protection area,” Czarnezki said. If they can do that, they can rebuild or relocate that structure back into the 50 foot protection zone, he said.
“If they can’t they have to move it outside of the 50 foot,” he said.
The prior uses portion of the ordinance states the borough can not prohibit uses that were legal before the effective date of the code “as long as the uses are not enlarged or include a greater number of participants or occupy a greater area of land,” Czarnezki said.
In closing, Czarnezki said one of the more common allegations staff hears about the ordinance is that property owners may no longer mow their lawns in the habitat protection district.
“That’s not true,” he said. “We treat a lawn as a pre-existing use or activity. So if the lawn existed prior to the code it can continue to be mowed. That holds true if someone has a swing set or a gazebo or whatever the use or structure — it is essentially grandfathered in and can be allowed to be maintained.”
Ostrander also addressed the borough’s code enforcement process.
“Basically the way it works now is if there is a violation, we receive a complaint from someone and someone goes out to investigate the property,” he said. “If it’s determined that in fact there is a violation on the property, at that point they try to get voluntary compliance. Really, in almost all cases that’s where we end.”
Ostrander said there has never been a habitat code violation that has gone to a hearing officer. However, if there is not voluntary compliance, Ostrander said the borough and homeowner can enter into a stipulated agreement in which the property owner admits there was a code violation and comes to an agreement to remedy the violation and pay civil fines as described in the agreement.
“If the conditions of that are not met, then an enforcement notice is issued,” Ostrander said. “If after 14 days after receipt of the warning letter there is no response, then a hearing is scheduled with the hearing officer not less than 20 and not more than 30 days from the date of the (enforcement notice).”
The hearing officer has the authority to dismiss any violation, impose civil fines, request revocation of a permit or request correction of the violation, according to information provided by the borough.
Stacy Mattson, borough code compliance officer, said borough employees are not actively surveying the streams and rivers currently in the code. Rather, she said, code enforcement is complaint-driven.
“It could be the public or other state agencies or neighbors,” she said. “We don’t go out seeking out violations.”
Brian Smith can be reached at firstname.lastname@example.org.