The Haines Borough Planning Commission reversed course last week, advancing a code change that would allow large-scale resource extraction in the Mud Bay zoning district, including by non-resident landowners.

Commissioners voted 4-1 to resurrect conditional use permitting for property owners seeking to move over 30,000 board feet of timber or 1,500 cubic yards of gravel on a three-acre lot over a three-year period. The allowance is less for smaller lot sizes.

Commissioner Sylvia Heinz recused herself from voting, citing her Mud Bay gravel pit; commissioner Rob Goldberg was absent.

Commissioner Jessica Kayser voted against the amendment because she said it seemed like a massive code change without giving the public notice to weigh in. “This change that you’ve done (means) that somebody that lives in (Los Angeles) can come in and cut down all the trees and dig out all the gravel,” she said. “That very much changes the tone of the zone.”

The assembly will hold a public hearing at its Tuesday, Feb. 26 meeting to discuss the recommendation.

The amendment came at the end of a nearly two-year process that added limitations to Mud Bay rural residential area’s code after a request for logging brought to light a lack of guidelines for resource extraction.

Under current borough-wide resource extraction code, material has to be extracted for commercial purposes in order to be regulated. Borough planner Holly Smith said that code wasn’t clear for Mud Bay, and people in other zones were circumventing the rule by claiming that their excavating and moving of materials wasn’t for commercial purposes.

The assembly and borough manager asked the planning commission to come up with a new definition for resource extraction that could be applied borough-wide.

The draft ordinance breaks down resource extraction into two categories: major and minor. Under minor resource extraction, the owner of a three-acre lot can remove up to 30,000 board feet of timber or 1,500 cubic yards of gravel from their property during a three-year period. Major resource extraction is defined by volume larger than that.

In January, the commission discussed conditional use in Mud Bay rural residential area, but commissioner Don Turner III withdrew his motion after assuming it wouldn’t pass the assembly.

Mud Bay rural residential zone, established in 1986, is intended to “provide for the establishment of a rural residential area allowing for single-family dwellings and cottage industries.”

Mud Bay rural residential zone limits property owners from developing without presently residing on the land. Cottage industries are defined as household businesses conducted by a member of a family and run by a maximum of three additional employees at one time.

The issue of conditional use was brought to the planning commission again after Sylvia Heinz asked borough manager Debra Schnabel if the historical gravel pit on property she recently purchased would be grandfathered into the new ordinance and be permitted to continue operations. Schnabel told Heinz that use of the pit for taking up to 1,500 yards over three years was allowable.

Heinz contended that she has a “non-conforming use.” A non-conforming use, or grandfathered use, is defined in code as a use that is prohibited under current code, but was once lawful. Schnabel said that the borough has no record of a business license for resource extraction and sale, and no reports of commercial activity at the property.

At Thursday’s meeting, Schnabel asked the planning commission to clarify the resource extraction draft ordinance to either definitively prohibit major resource extraction in Mud Bay zoning area or allow it with a conditional use under provisions of a commercial enterprise.

Heinz said the gravel pit has been used since the 1960s to maintain roads every decade or so as needed. She said that since McCrae Road hasn’t been maintained in years, she anticipates needing more than the new ordinance’s allotted limit of 1,500 yards, or 150 truckloads, of gravel. “I’m not planning on making a lot of money off the gravel pit,” she said. She intends to keep using it to trade with neighbors and to maintain road access.

Commissioner Diana Lapham proposed the assembly amend the ordinance to allow major resource extraction as a conditional use in Mud Bay. She also removed the requirement of “commercial enterprise,” terminology specific to Mud Bay that requires a business owner to live on the property.

Lapham said that the amendment would answer the frustration of many residents and landowners who are unable to develop their properties under current code.

“It’s giving (our taxpayers) an avenue, instead of saying ‘No, hell no, in no way shape or form,’” Lapham said. “Now, they can come here for a conditional use permit. We can help come to a compromise both with them and the audience and satisfying a person that owns property out there.”

Mud Bay Land Use Service Area (MBLUSA), now Mud Bay Zoning District, has stringently guarded development in the neighborhood for three decades.

In Lutak, commercial logging is allowed as a conditional use, but other types of resource extraction are prohibited and the definition addresses resource extraction as a whole. In Mud Bay, the majority of public participants in workshops and public hearings since May 2017 have requested that resource extraction be prohibited because it does not conform to the intent and purpose of the zone.

The planning commission has been working on the resource extraction draft ordinance since May 2017. They have held four public workshops and 10 public hearings to define resource extraction borough-wide. Smith said they also created a scenario survey that sought to narrow down what commissioners and the public defined as resource extraction, which helped to create a definition.

The vast majority of comments were regarding the Mud Bay zone.

According to inventory of public hearing documents, 56 participants wrote letters or provided public testimony. Of them, 31 want to prohibit resource extraction in the Mud Bay residential zone, 16 want to allow it, and nine wanted to partially allow, clarify the definition or receive more community input.

Heinz said that she doesn’t believe public testimony represented all residents of the area, and that the tone of the discourse has made some residents feel intimidated to speak in favor of resource extraction.

“I’ve spoken to many people individually that have been in favor of a conditional use permit, but they don’t feel comfortable publicly disagreeing with the vocal opinion,” Heinz said.

Heinz’s neighbor, Lindsay Johnson, wrote a letter of support for the ordinance, stating that Heinz’s gravel source helps maintain the road to her house.

“We want to be able to improve our road without the cost and disruption of bringing gravel from town,” Johnson wrote. “In this case, limiting extraction of the local resource would result in greater detriment to quality of life than allowing unrestricted use.”

Author