A settlement between Southeast Roadbuilders (SERB) and the borough last week granted a conditional use permit for gravel extraction on Lutak Road, ending a long-running string of appeals that moved between the planning commission, borough assembly, and State Superior Court.
But now, the process for the final resolution, conducted in settlement negotiations and executive sessions, is drawing criticism for a lack of transparency.
Conditional use permits, used to allow activities not otherwise specified by zoning regulations, face a high standard for approval, requiring planning commission approval and public hearing. Borough code also states that for conditional use applications, the applicant bears the burden of proof, and must provide “a preponderance of the evidence” that the application satisfies eight standard conditions laid out in code.
SERB went through that process in mid-2023 and was issued a permit by the planning commission, just before the planning commission switched from an appointed body to an elected body. After a group of citizens appealed the permit decision to the assembly, the assembly sent a modified version of the application back to the planning commission to be reconsidered. With the new set of commissioners presiding, the permit was denied. After another set of appeals once again failed to move the assembly, SERB filed an appeal in Superior Court.
That final appeal paid off for the company, with the out-of-court settlement granting the permit, reversing the prior decision of the borough assembly. Discussions about that topic – reversing the prior decision – were all conducted in executive session, as is allowed for topics under ongoing litigation.
That process has raised questions about whether or not the new permit was issued legally. Tim McDonough, one of the original appellants opposing the permit, said he wants an explanation of how borough code allowed for the recent permitting.
“If they followed the rules, even though I’m not too happy about the decision, it seems like a reasonable action,” McDonough said.
Officials on the borough side say what happened was standard procedure. Assembly member Cheryl Stickler, who is the assembly liaison to the planning commission, said that while the assembly did issue a permit, it is the same permit that has been under consideration through the whole process. According to Stickler, that means it can be issued without going back in front of the planning commission.
As for any additional public hearings, interim borough manager Alekka Fullerton said they are not needed.
“This is part of the same appellate process,” Fullerton said. “The permit didn’t need a new appeals hearing.” Fullerton said the assembly and borough staff received legal counsel throughout the settlement process, and the settlement agreement itself was drafted by the borough’s attorney.
The planning commission is slated to receive an update from Stickler and discuss the permit at their meeting on Thursday. Planning commissioner Eben Sargent said there isn’t too much likely to come out of that.
“Somebody that wanted to overturn this would have to sue the borough,” Sargent said. “At this point, SERB has a permit and can start work at any time.”
Even with little recourse, Sargent does plan to raise concerns during discussion at the meeting. Sargent voted not to grant the permit when it went in front of the planning commission for the second time back in 2024. But he emphasized that his opposition then, and his opposition to the assembly’s process now, is about a bigger picture.
Despite the no vote in 2024, Sargent said he believed at the time SERB had a “realistic path” to securing the conditional use permit. That path would have been SERB resubmitting the permit, but with more information provided, particularly on landslide risk mitigation. Planning commissioner Patty Brown said the commission did offer SERB that option to resubmit, but the company chose to continue up the appeals ladder.
For Sargent, that was a problem. In his eyes it might have been the threat of lawsuit that secured the permit, despite a planning commission and an assembly previously deciding otherwise.
“If lawsuits provide an end-run around the process,” Sargent said, “it should be expected people will use that end-run.”
While Fullerton said SERB did not submit a new application for the recently granted permit, they did submit a set of slope contour drawings that were included in documentation for the upcoming planning commission meeting. Sargent said these were not submitted to the planning commission while they were reviewing the application.
There is reason to suspect some amount of landslide risk. The results of a state landslide hazard mapping project were released this winter. On those maps, the newly-permitted site, just up Lutak Road from the ferry terminal, is shown to be sitting at the foot of a debris-flow chute. The area above the parcel, as mapped, has the highest “watershed initiation and transport potential” of any area coming off of the ridge between the Ripinsky and Tukgahgo peaks. The report includes a disclaimer saying the mapping is not meant to be used at a site-specific scale. But it also says the LiDAR elevation data underpinning the modeling was recorded with a 1-meter resolution – far more granular than the topographic lines used for the site-specific drawings recently submitted by SERB.
The company did not respond to repeated requests for comment.