A permit application for a raptor tour in the Liarsville area of Skagway is coming back to the local planning commission in July.
The commission denied the application from Haines-based Alaska Mountain Guides in the fall of 2014. AMG appealed to Alaska Superior Court. In April, a Juneau judge remanded the decision back to the planning commission. He said the reasons for the borough’s denial were ‘unclear.’
Alaska Mountain Guides’ plan involves partnering with the American Bald Eagle Foundation in Haines to offer a Skagway raptor tour. They would bring visitors to the Liarsville property and walk on a short trail to a raptor viewing center, where up to 10 birds would be kept in mews and handled by trained staff from the Eagle Foundation.
In a letter to the planning commission, AMG representatives said the facility would ‘bring variety to Skagway’s natural history and educational offerings.’
“My concern was related to the entire application,” says Orion Hanson, the Skagway planning commission chair. “I didn’t really think it was appropriate to the location, particularly with the comments from the public, from the neighboring property owners.”
Hanson says the planners had a number of concerns about the proposed tour. They included the influx of tourists to the area, the lack of restrooms and 24-hour supervision of the site, and some neighbors’ opposition the plan. Hanson also feels the industrial-zoned area isn’t an appropriate place for a tourism-focused business.
“You’re not supposed to have strictly tourist-related activities out there,” Hanson says.
Tourism uses are not specifically referenced in Skagway’s industrial zoning code. Kennels are allowed. Minutes from the meeting show that planners struggled with whether the raptor tour fell under the definition for a kennel.
Ultimately, the commission rejected the conditional use permit application in a vote of 2-1. Commissioners Hanson and Matt Deach were opposed, Rocky Outcalt was in favor.
In the commission’s reasoning, it said the permit application failed to meet three of the four criteria for conditional use: it would not protect the public health, safety and welfare; it would permanently or substantially injure the lawful use of neighboring properties or uses; and it will substantially decrease the value of or be out of harmony with property in the neighboring area.
To that, Juneau Judge Phillip Pallenberg essentially says, ‘where is the proof?’
After AMG’s permit was rejected by the planning commission and the assembly board of appeals upheld the rejection, the tour company appealed the decision to Superior Court.
Judge Pallenberg sided with AMG, saying the planning commission did not pass the ‘substantial evidence test.’
Pallenberg walks through the conversation between AMG co-owner Sean Gaffney and planners at the October 2014 meeting. He notes that Gaffney responded to concerns such as lack of restrooms or 24-hour surveillance, saying they would be happy to comply with those conditions. Despite AMG’s reassurances, the commission denied the permit.
“The Municipality suggests, in essence, that the court simply assume that each and every one of the concerns expressed in the meeting formed the basis for the denial of the permit,” Pallenberg says in his decision. “This does not answer the question of why the Commission denied the permit, rather than conditioning it upon remediation of these concerns.”
Planner Hanson says he thinks the commission’s reasoning is clear from the meeting’s discussion.
“I thought it was a slanted viewing of how the judge read it,” Hanson says. “And some of that may just be the way that Skagway presents the findings of fact. I thought that in reading through the minutes, which the judge had, I thought it was a pretty clear. But I’m not a judge. I’m a carpenter.”
Judge Pallenberg says the evidence is ‘insufficient’ for the court to review the commission’s reasons for denying the permit. So, the decision to deny is reversed and remanded back to the commission. He says the borough must either determine whether to enter new findings of fact or hold a new hearing on AMG’s permit application.
Hanson says a hearing is scheduled for the commission’s July 14 meeting.
“Let’s do it over. AMG can present their case again and we’ll be as thorough as possible.”
AMG’s Gaffney declined to comment for this story, citing ongoing litigation. After Pallenberg’s decision, AMG filed a motion to recuperate attorney fees from the Municipality of Skagway. Borough Manager Scott Hahn says the borough opposes AMG’s claims over court costs and is contesting that motion.