The Haines Borough Assembly voted to evaluate the borough’s legal options if the University of Alaska awards a timber sale contract in the Chilkat Peninsula because “the proposed University timber sale violates all existing provisions for commercial use in the Mud Bay rural residential zone as well as the purpose and intent of that code.”

Assembly member Stephanie Scott made the motion at a special meeting Monday that was scheduled for the assembly to provide official comment to the University.

The University’s Board of Regents triggered the timber sale on about 400 acres of land in the Mud Bay Land Use Service Area in September after the Haines Borough Planning Commission discussed limiting resource extraction in the rural residential zone.

The assembly met with University representatives earlier this month to learn about the timber sale and discuss alternatives to commercial logging such as subdividing and selling the land. No action was taken at that meeting.

Assembly member Heather Lende said she was unsatisfied with the University’s response.

“The University land trust believes it can log its holdings on the Chilkat Peninsula regardless of the local zoning code that clearly prohibits that activity,” Lende said. “They provided very little detail concerning access, harvest methods, the value of the land versus timber. I guess I had hoped for greater understanding and some resolution that would align with our code and the development of a subdivision.”

Lende cited Mud Bay zoning code which states the “zone is intended to provide for the establishment of a rural residential area allowing for single-family dwellings and cottage industries.”

Commercial use is an allowable conditional use in rural residential zones with the caveat that “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.”

 The motion to evaluate legal options should the University award a contract passed 5-1 with assembly member Brenda Josephson opposed, citing the borough’s comprehensive plan and other language in the Mud Bay zoning code.

The University logged in the area prior to the creation of the Mud Bay zoning code.

“We acknowledge their active management of their land for revenue generation in our comprehensive plan,” Josephson said. “Our code states any development which existed prior to the implementation of land use ordinance is a use-by-right.”

Josephson also cited Alaska Municipal League advice to elected officials. She questioned whether or not some assembly members’ decisions, four of whom own property in Mud Bay, were based on personal interest. She also questioned the use of public funds to fight the University.

In an email to the assembly regarding the special meeting, Borough Manager Debra Schnabel encouraged public officials to acknowledge the perception of a conflict of interest.

“The Assembly must be cognizant of the perception that personal conflicts-of-interest could interfere with a solid look at the issues,” Schnabel wrote. “Four members of the Assembly and the Mayor have personal interests (land ownership) in this zone. I own property in this zone. Two seated members and two nominees to the planning commission own land in the zone. It may be prudent for individuals to acknowledge this interest.”

During the meeting, assembly member Tom Morphet said the issue was about the “highest and best use of the property,” not one of financial or environmental interests.

“My concern is that millions of dollars have been spent building the homes in this zone on the understanding, right or wrong, correct or incorrect, that commercial logging would not be allowed in those areas,” Morphet said. “My further concerns are that to log the property would create a one-time value for the University of Alaska while subtracting long-term value from dozens of adjoining and nearby property owners.”

Assembly member Tresham Gregg cited University policy that states it will develop its property consistent with local zoning code.

“Their policy on resource extraction clearly states they will work within the parameters of the local communities’ concerns and regulations,” Gregg said. “To this point in time nothing of the sort is happening. The state is here for the people that live here not just a monetary bottom line.”

The University states its property “shall be developed consistent with local zoning and platting ordinances…” with the caveat that such development does not conflict with the board of regents’ “fiduciary duties and responsibilities.”

Such duties include generating revenue for the University’s Land Grant Trust Fund, which, in part, provides scholarships and funds the management and development of its lands.

In an interview last week, University of Alaska Chief Facilities and Lands Officer Christine Klein said the land the University owns in the Haines Borough is one of their “largest parcels for generating revenue so it’s very important and key to us and to the overall trust endowment itself from a resource basis… It’s really important to us and we want to work with the community but we also have a mandate.”

Lende wanted to add supplemental language to the motion indicating the assembly is willing to work with the University “in an appropriate way.”

Gregg said if the assembly didn’t “give them something other than this (motion) it seems counterproductive.”

Schnabel said it would be difficult for her to add language that would “soften” the assembly’s motion to seek legal options should the University award a contract.

“You have made the statement that the sale violates all existing provisions for commercial use…That’s your position. I think there are other people that may consider that questionable and subject to interpretation. You’ve taken a position and that’s fine but I can’t try to not make it a position.”

Schnabel wrote a draft comment which includes language stating the assembly looks forward to discussions that could “result in development of a conforming residential subdivision as well as ordinance language that effectively describes resource extraction within the zone.”

In the meeting between the University and the assembly earlier this month, University Regional Resource Manager Patrick Kelly told the assembly the University would “look at all options” to exercise its fiduciary responsibilities to generate revenue for its Land Grant Trust Fund and was looking for a “win-win” with the borough.

In a written response to the University, Josephson said she’d like the borough to work with the University “to establish conditions on the proposed timber sale so that the impacts of concern to the borough and its residents can be avoided or minimized.” She suggested the borough establish a committee to work with University project developers.

No official, specific options were proposed since the meeting in early November.

Kelly said the University has no comment regarding the borough assembly’s decision to evaluate its legal options.

The public comment and bid period for the timber sale ends Nov. 22.

What does the borough attorney have to say on the issue?

Borough Attorney Brooks Chandler recommended the borough assembly require the University apply for a conditional use permit through the planning commission.

Chandler also said the borough assembly should not take a position on the timber sale if it requires the University to obtain such a permit. If the university was granted a conditional use permit from the planning commission, the commission’s decision might be appealed and the borough assembly would then have to hear the appeal.

“If that were to occur members of the assembly who could be demonstrated to have ‘pre-judged’ the merits of the appeal through earlier statements would be subject to disqualification for bias by either party,” Chandler wrote to the assembly.

He recommended the assembly authorize the borough manager to submit comments on behalf of the borough requesting additional consultation on the timber sale and submission of a land use or conditional use permit application before the University awards a contract.

He said assembly members who would be judged as biased “should proceed with understanding they will most likely be disqualified from hearing any appeal involving the university or its contractor in the future.”

Chandler also told the assembly when it comes to land use law, if an activity is not expressly prohibited it’s allowed. In the Mud Bay land use code, the only prohibited use is heliports.

Lutak’s zoning code has different language that states, “All uses not expressly provided under permitted, accessory or conditional uses are prohibited.”

Commercial logging is a conditional use in the Lutak’s rural residential zone.

The Mud Bay rural residential code includes a “use-by-right” clause which allows for development that “existed prior to the implementation of any land use ordinances.”

The term “development” means, generally, existing infrastructure. Commercial logging and resource extraction are not included in the borough’s definition of development.