By a 5-to-4 margin, the Kenai Peninsula Borough Assembly voted Tuesday to add a triangular section of land between Homer and Kachemak City into the Kachemak Emergency Services Area over the objections of Homer city officials and others who argued against the move because the area, known as Miller's Landing, could be annexed to the city within weeks.
The Miller's Landing area runs along the bluff south of Homer Airport and is part of the 4.58-square-mile territory proposed for annexation. It contains numerous residences and businesses, including a major boatyard. As such, it represents a sizable pool of future property tax revenue for the service area and the city.
Residents there had voted in the 2000 election establishing the fire and ambulance service area. It was soon discovered, however, that Miller's Landing had been inadvertently excluded from the legal description of the service area drawn before the election. Assembly debate centered on the issues of fairness and the legality of adding the region to the service area after the fact.
In a separate vote, and by the same margin, the assembly rejected a resolution proposed by Borough Mayor Dale Bagley and District 9 assembly member Milli Martin, of Diamond Ridge, that would have put the assembly on record as opposing the city of Homer's annexation bid. That annexation has won the approval of the Alaska Local Boundary Commission, the independent board created by the Alaska Constitution to determine if annexation proposals are in the best interest of the state.
Both the ordinance adding Miller's Landing to the service area and the resolution to oppose Homer's annexation are to be reconsidered at the assembly meeting Feb. 5. Seward assembly member Ron Long was the swing vote on the two measures.
In regards to the addition of Miller's Landing, Long said voter intentions had been clear before the election and that to him it was just a matter of correcting a mistake. That the mapping error was not discovered until after the vote was not reason to exclude the Miller's Landing residents.
"Everyone (in the Miller's Landing area) voted in good faith," he said.
Martin said she had been "blindly unaware" that Miller's Landing had been excluded from the election map until she saw the boundary commission's report on annexation that showed the area was not part of the service area. Adding it back "was the right thing to do," she said.
Whether adding the area back into the service area was really as simple as correcting a mistake was the question that divided the assembly.
Assembly member Chris Moss, of Homer, who opposed the ordinance, said he thought the move had put the borough at risk of litigation, possibly with the city of Homer, though the city has not said such a lawsuit would happen. Moss said he would have preferred to leave the question of including Miller's Landing in the service area until after the Legislature decides on Homer's annexation sometime in late February or early March. Lawmakers in both houses must approve a measure specifically rejecting the annexation, otherwise it becomes law.
The issue was complicated by a new state statute adopted last year, House Bill 13, which requires a vote of the affected residents whenever there is a move to alter the boundaries of a service area. However, a pair of legal opinions from the Alaska attorney general's office and from the Division of Legal and Research Services of the Legislative Affairs Agency -- the legal arm of the Legislature -- say the Alaska Constitution allows for a change in boundaries without a vote when a service area or part of one is annexed to a municipality.
Tamara Brandt Cook, director of legislative legal services, said, "While the matter has not been considered by a court, I think that it is more likely that a court would find that (HB 13) has no application when a change to a service area results from an annexation that is recommended by the LBC under its constitutional authority" in Article X, Section 1.
Cook also raised a question about the legality of the entire Kachemak Emergency Service Area. If, as has been implied by some, the service area was created in response to Homer's annexation bid, "the area was probably invalidly established," she said. The Alaska Constitution disallows service area formation when the same service can be provided by annexation.
The issue may end up in court. After receiving the legal affairs opinion Jan. 9, Sen. John Torgerson, R-Kasilof, who has said he will hold hearings next month on the Homer annexation issue, wrote to annexation opponent Abigail Fuller. In his Jan. 18 letter, Torgerson told Fuller court may be an option.
"Given that the opinion (of legal services) supports the position of the Attorney General, it may be that your group should review whether you want to file legal action," he said. The opinion regarding HB 13 was "of particular concern to me," he said, predicting it would not be well received by legislators.
"We labored long and hard over the bill because of the issue of a public vote," he told Fuller.
He offered to negotiate with the city on behalf of opponents if they could provide him with some specific conditions that would help resolve their issues with annexation. But Torgerson also said he would not introduce a Senate measure disapproving the annexation without a companion House measure.
The issue of whether to take a stand against annexation as a legislative body also divided the assembly. But when the vote was taken, following almost two hours of testimony, the resolution failed.
This time, Long said the assembly must trust the legislative process already under way in Juneau. The state Legislature is the proper forum for the question of Homer's annexation to play itself out, he said.
Long was joined by Navarre, Moss, Bill Popp, of Kenai, and Pete Sprague, of Soldotna, in opposing the resolution. Navarre, Moss, Popp and Sprague had been unsuccessful in defeating the ordinance adding Miller's Landing to the Kachemak Emergency Service Area earlier in the evening.
City Manager Ron Drathman was grateful that the resolution opposing annexation had failed, but said the assembly voted incorrectly on the ordinance regarding Miller's Landing.
"It flies right in the face of the law," he said. "The have an opinion from the attorney general and another from the legal services telling them the entire service area may have been created illegally. Why they are in such a rush to do this is beyond me."
Among those who went to Soldotna to testify were five members of the Homer City Council. They expressed dismay over the Miller's Landing vote, and appreciation for the vote on the resolution. Some opponents said they are being ignored by their elected representatives.
In other business, the assembly introduced an ordinance authorizing the mayor to execute a new lease and operating agreement with Central Peninsula General Hospital Inc. Public hearings will be held Feb. 5 and Feb. 19.
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