Land dispute heads for court

Posted: Monday, July 07, 2003

Attorneys for the Kenai Peninsula Borough and a group of residents from Cooper Landing took their five-year-old dispute over a controversial borough land reclassification and proposed land sale in the Cooper Landing area to the Alaska Supreme Court last month.

It is not certain when the justices will rule on the case named Friends of Cooper Landing v. Kenai Peninsula Borough.

At issue were whether the court has jurisdiction to hear an appeal of a municipality's reclassification of its own land, and whether the borough had inappropriately amended its own comprehensive plan.

The genesis of the controversy sprang from decisions made by the Kenai Peninsula Borough Assembly in the mid- to late-1990s concerning 10 acres of borough land along the Sterling Highway overlooking Kenai Lake near the mouth of Quartz Creek known as Tract A.

A 1996 Cooper Landing community plan approved by the borough had designated Tract A for preservation. Many residents considered it a recreation area. It also was considered sensitive wildlife habitat and a prime location for viewing Dall sheep. That plan had designated land nearby for development of a residential subdivision now called Sunrise View.

The Cooper Landing Advisory Planning Commission and the Kenai Peninsula Borough Planning Commission each rejected resolutions to reclassify the land as residential in the summer of 1997. In September of that year, however, the assembly took the action itself, reclassifying the 10 acres of Tract A from preservation to residential.

In July 1998, the assembly requested that the administration subdivide the 10 acres and authorized its sale. Later that year, the assembly approved a plat for the Sunrise View Subdivision, OK'd the auction of Tract A and also approved the sale of four other nearby tracts in conjunction with Tract A.

Friends of Cooper Landing appealed the subdivision plat, arguing that Tract A should be left in the preservation designation and that any subdivision should be properly developed, with roads built to borough standards, greenbelts and covenants banning uses incompatible with residential living.

The assembly, acting as a Board of Adjustment, rejected the appeal in February of 2000. Then-assembly member Tim Navarre said the issues on appeal were whether the preliminary plat had satisfied borough code requirements and had been fair. He said he believed the borough's actions had met those criteria.

By April 2000, the Friends appealed to the Alaska Superior Court in Kenai, where Judge Jonathan Link dismissed the case, saying the Superior Court did not have the jurisdiction to review what amounted to a legislative decision by appeal.

Believing the action of the Board of Adjustment to have been quasi-judicial, not legislative, in nature, and thus within the court's jurisdiction, Friends appealed to the Alaska Supreme Court, which heard the case on June 17. The only land at issue there was Tract A.

As to the land classification and platting issue themselves, Jim Reeves, attorney for Friends, told the high court that the borough assembly's action of approving the disputed plat violated the borough's comprehensive plan.

"The borough is required by state law and by decisions of this court to comply with the comprehensive plan when it adopts or approves a plat," he said.

Reeves said that in the broadest sense, the controversy is a conflict between the views of Cooper Landing residents and the political bodies of the borough and how the mechanisms of law mesh to resolve conflict. Essentially, Friends alleged that the reclassification of the land as residential is improper, and thus the subsequent plat is invalid. The borough argued the reclassification is valid, and so, too, the plat.

In the narrow sense, Reeves added, it is a question of appellate procedure.

That is, whether an appeal arising from an action of a Board of Adjustment is entitled to a high court hearing, as Friends argued, or whether Friends of Cooper Landing should have taken a different path to the high court by filing a lawsuit (a "civil action") in Superior Court, as the borough argued.

Reeves said Wednesday that what fascinates him about the case is that he knows of no one who actually wants the land to go into private ownership.

"This is being perpetuated by the inertia of well-meaning politicians who prefer not to go back to revisit it," he said.

Reeves said he fully expects to prevail, but should the high court decide to uphold the Superior Court decision, the borough would enjoy only "a Pyrrhic victory" (one achieved at too high a cost). Friends of Cooper Landing could decide to file a civil action, or have the current appeal converted to a civil action, and take it back through the court system.

"By one means or another, the court will decide if what the borough did was legal," Reeves said.

Assistant Borough Attorney Holly Montague was on vacation and unavailable for comment.

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