The Haines Borough Planning Commission last week upheld a land use permit for the harbor expansion, but one appellant said he’ll appeal that decision, this time to the borough assembly.

Paul Nelson, one of three Haines residents to challenge borough manager Bill Seward’s decision to issue the permit, said this week he would appeal again.

“I understand their decision, but it’s really my fault for not explaining it more fully,” Nelson said.

Nelson said he should have explained in more detail about how he believed the manager’s decision violated each section of applicable borough code. He plans to do so in front of the assembly.

“All I’m asking is for the borough to comply with their own rules,” Nelson said. He said he hasn’t decided if he would take the matter to court if Seward’s decision is upheld by the assembly.

Nelson, Debra Schnabel and Sue Waterhouse each presented appeals to the commission, citing noncompliance with borough code. The marathon session lasted almost four hours.

Nelson cited five sections of the code and two sections of the Haines Coastal Management Plan to argue that the manager wrongly granted the land use permit without a conditional use permit.

Planning commission member Brenda Josephson argued that the harbor is a commercial facility – meaning the project would need a conditional use permit.

However, commissioner Donnie Turner, chairman Rob Goldberg and public facilities director Brad Ryan said it is a public facility. Public facilities are “use by right” and their construction does not require a conditional use permit.

“I don’t know how you can spin it. It’s a public facility,” Turner said. Goldberg said, “The harbor itself is not a business.”

Goldberg and Seward said the harbor was “essentially a parking lot for boats.”

Some commissioners initially were confused whether the land use permit applied just to the project’s first phase or to its entirety. Borough officials said the permit applied solely to the first phase.

Earlier, borough administration officials met in the manager’s office to determine the small boat harbor should not be classified as commercial because the Lutak Dock is Haines’ marine commercial facility.

“If it called for a conditional use permit, we would have made sure a conditional use permit was submitted,” Seward said.

Seward said land use permits are normally just processed and are considered an “administrative drill.” “We’re just essentially just doing our jobs,” Seward said.

But he made sure the issue got on the commission’s agenda for public comment last month.

“This is a project of large magnitude to the community. Everyone is involved in this one,” Seward said.

The commission upheld Seward’s decision regarding Nelson 6-1, with Lende opposed.

On her appeal, Schnabel argued that the planning commission is the borough’s sole planning body, and that it has not had enough say in planning the harbor expansion. “The main issue is that we have gotten off track with our planning procedure,” Schnabel said.

She also contested Seward’s statement that the expansion has received sufficient public comment – saying there is a difference between a formal public hearing and people speaking up in the public comment portion of a borough government meeting.

“Having something on the agenda as a discussion item and letting the public talk is not a public hearing. A public hearing is something that’s noticed as a hearing that is almost quasi-judicial in the sense that the body has something like what we’re doing tonight. There was never, ever a public hearing noticed on your agendas…How can anyone reasonable say public process was followed properly?”

Asked by commissioner Josephson to summarize her points, Schnabel said: “I think that the manager of the borough needs to carry with him at all times an awareness of the full body of code. And the body of code requires public facilities to be planned by the planning commission. And I think, in the most perfect world, the manager ought to have said, ‘This project has not gone through a public process. This project has not been planned by the planning commission. This project has not had a public review. I cannot sign this permit.’”

However, Schnabel withdrew her appeal before the commission had an opportunity to vote. After the meeting, she explained why she dropped the appeal.

“It was a dramatic moment. I had delivered an argument that I knew held truth,” Schnabel said. “The (chairman) asked the commission what it wanted to do. I knew I had two votes, but I could feel the churning and twisting of the other commissioners, and I was completely overcome with compassion. I withdrew my appeal.”

On the third appeal, Waterhouse argued the permit violated a part of borough code that requires a local consistency review for a land use permit. A consistency review’s purpose is to ensure an action complies with the borough’s various formal plans, such as the Comprehensive Plan. Schnabel argued the commission is legally responsible for enforcing the Coastal Zone Management Plan, which calls for a consistency review.

But because the harbor expansion plan is federally permitted, borough administration officials said no local consistency review was required.

That’s because a local consistency review is required only when the federal or state governments are not mandated to do such a review in their permitting processes, they said.

The commission upheld Seward’s decision on this appeal 5-2, with Josephson and Lende opposed.