Planning commissioners clashed with borough assembly representatives at last week’s planning commission meeting over the assembly’s recent settlement deal with Southeast Roadbuilders.
The settlement deal ended a years-long appeals process with Southeast Roadbuilders (SERB) by granting a conditional use permit that had first been approved by a planning commission in 2023, then denied by a different iteration of the planning commission, then denied again by a previous assembly.
Assembly liaison Cheryl Stickler was on the agenda to deliver a report on the settlement, which turned into a back and forth between her, standing at the public comment lectern, and the commissioners sitting on the dais.
The discussion was almost as lengthy and complicated as the process it was discussing, with Stickler answering spot questions and defending the actions of the broader assembly for almost an hour.
The divide between the planning commission and the assembly, which voted 5-1 to approve the settlement, was perhaps less a reflection of ideological lines and more about the two bodies asserting power over the governing process.
Stickler, supported by comments from interim manager Alekka Fullerton and mayor Tom Morphet, who were both in attendance, said issuing the permit was well within the assembly’s purview.
Stickler cited Alaska Statute establishing the borough’s power to “sue and be sued.”
According to those assembly representatives, that gives the assembly responsibility for any borough litigation, including out-of-court settlements. And whatever was negotiated in the settlement, they argued, was the end of the line for the permit question.
“Any action an assembly takes can be appealed to Superior Court,” Morphet said, moving from the audience to the lectern to weigh in. “We are not the final word, the courts are the final word.”
However, multiple planning commissioners cited the decision to issue a permit in the settlement deal – as opposed to whatever else could have been negotiated – as a significant change to normal process.
As commissioner Dan Schultz pointed out, overturning a permitting decision in a normal assembly appeal hearing requires a supermajority, while approving a settlement deal only requires a simple majority.
Making the permitting decision in the settlement deal meant that the permit was therefore subject to the lower voting standard, rather than the higher one.
“You just changed the entire voting regime,” Schultz said to Stickler at one point, adding that lower voting threshold could be an incentive for companies to sue the borough.
Last year, SERB was not able to clear that supermajority threshold in their appeal to the assembly. The recent 5-1 vote by the assembly to approve would have met that standard, but Schultz and others thinking about long-term precedent said that was beside the point.
Commission deputy chair Derek Poinsette emphasized that SERB had other options. The planning commission had offered SERB the opportunity to resubmit their application with more supporting information after the initial denial. Instead they chose to go to litigation.
“I have a problem with that,” Poinsette said. “If people know that option is open, if they have a friendly assembly, they can skip code, go into executive session, and get what they want.”
The discussion over the future implications of the decision stretched on for quite a while, with long, detailed comments from Eben Sargent in particular. Stickler remained standing the whole time.
“What was the option [besides settlement]?” Stickler said at one point, posing what seemed like a rhetorical question to the planning commissioners. “The assembly is the body with the authority to settle.”
But commissioners Poinsette, Sargent, and Schultz did have at least one alternative option: to not settle at all.
Stickler said that she felt the settlement deal resolved the concerns that had previously stopped the assembly from granting the permit.
When asked for an example by Schultz, she pointed to a stipulation that SERB implement noise mitigation. Schultz was not satisfied with that answer, saying that he had read SERB’s plans for those measures, and did not think they were sufficient.
As for what comes next, it seems the answer is, not much.
Stickler said afterward that the discussion did not significantly change her thinking on the issue, and there were no plans on the assembly side to take any other action.
On the planning commission side, Poinsette said that while he didn’t feel the assembly was acting entirely in good faith, it was likely time to move on from the issue.