The Haines Borough Planning Commission will form a committee to address borough laws on resource extraction after differing interpretations of Mud Bay rural residential zoning language shed light on disagreements about land use in the area.
The issue motivated one Mud Bay land owner to consult his attorney and say he’d seek compensation from the borough if commercial logging was restricted in the Mud Bay planning district. In a letter dated May 23, Roger Schnabel’s attorney Daniel Bruce put the borough on notice after planning commission members began discussing potential prohibitions on extractive activities in May. Schnabel owns 157 acres in the district.
“Preventing the removal would amount to an unconstitutional taking, entitling our clients to an award of damages against the borough,” attorney Bruce said.
Other landowners in the area, the University of Alaska and the Alaska Mental Health Trust, also object to any change that would limit commercial timber harvest.
The planning commission sought legal advice after receiving the correspondence. Borough attorney Patrick Munson said the risk of the borough compensating landowners for prohibitions on resource extraction is low, but possible.
“However, if a taking was found, the amount of just compensation ordered could be significant,” Munson said.
The conversation over resource extraction on Chilkat Peninsula began after a landowner sought a permit to selectively log and sell timber in the area. Borough planner Holly Smith said she couldn’t find language in Mud Bay zoning regulations that addresses resource extraction, defined in code, in part, as the clearing, mining or grading of land for commercial purposes.
The Mud Bay zoning district allows cottage industry secondary to residential use, provided the business is conducted by family residing on the property and no more than three employees.
The code also allows “commercial enterprise” as a conditional use, any “commercial, manufacturing, sale or service that occurs on a person’s private property,” the code says. “A commercial enterprise shall be conducted only by a member or members of a family residing in a residence on the property and with up to six additional employees at any one time.”
Commission members Rob Goldberg, Brenda Josephson and Donnie Turner will meet to define resource extraction in borough code. The meeting had not been scheduled at the time of publication. Borough manager Debra Schnabel suggested in a memo last month, after receiving Munson’s opinion, that the commission more specifically describe the term as it applies to all zones.
Commissioner Lee Heinmiller said he was interested in sending the question back to the attorney to include a recent U.S. Supreme Court decision on takings that sided with the municipality.