The Haines Planning Commission heard three appeals of Borough Manager Bill Seward’s decision to issue a land use permit for the Portage Cove Harbor Expansion project. After hours of discussion, the permit was upheld.
The nearly five-hour meeting got way down into the weeds of borough code. That’s because Haines residents Paul Nelson, Debra Schnabel and Sue Waterhouse were each appealing the land use permit decision based on code violations. Nelson’s appeal was heard first.
“I ask that you consider the fact that we are a government of the people for the people, by the people,” said Nelson. “If this is true, what do we have to lose by having a public hearing and following Haines Borough Code.”
Nelson argued a conditional use permit was necessary before granting the land use permit. He cited several pieces of law, including the part of borough code that lays out the rules for conditional use.
To determine whether or not Manager Seward should have gone this route, the commission first had to establish how they define the harbor. Here’s commissioner Donnie Turner.
“As far as I can see, the number one thing is in the waterfront zone a public facility is a use by right,” said Turner. “And I don’t see how you can spin it any direction that the boat harbor is not a public facility.”
But commissioner Brenda Josephson disagreed, saying the harbor is a marine commercial facility that would require a conditional use permit.
“When I read in code what I believe to be the closest definition to what’s being built at the harbor, a marine commercial facility is a commercial use involving business activities that require access to the marine waterfront as an integral and unavoidable part of their conduct,” said Josephson.
Chair Rob Goldberg reminded the group that the permit was only issued for Phase One of the project.
“Which is the breakwater, the dredging, and the fill. All the other uses, the boat storage, all that stuff is speculation at this point,” said Goldberg.
Josephson did not contest that those aspects of the project are use-by-right, therefore not requiring a conditional use permit. But, she and commissioner Heather Lende both took issue with the fact that the permit does not specify it is only for the first phase.
I don’t believe this is a complete permit,” said Josephson. “If this would have said that this was for the breakwater, dredging and fill, I would have concurred that there was nothing other than a land use permit required. But it doesn’t say that, it is wide open for everything.”
Seward defended his decision, saying if a conditional use permit was required they would have gotten one.
In the case of Nelson’s appeal, the commission voted to uphold the manager’s decision. They asked for the permit to specify that it only applies to
the first phase of the harbor expansion. The decision to uphold passed 6-1 with Lende opposed.
The second appeal came from Debra Schnabel.
“And what I would ask of my entire community, just fess up,” said Schnabel. “I’ve just listened to you guys burrow down into a code – the specificity of whether or not the harbor facility needed a conditional use permit or not. The main issue is that we have gotten off track with our planning procedure.”
Schnabel cited three instances of code that she feels were violated by Seward’s decision.
“The body of code requires public facilities to be planned by the planning commission,” said Schnabel. “And I think in the most perfect world the manager ought to have said ‘this project has not gone through a public process, this project has not been planned by the planning commission, this project has not had a public review. I cannot sign this permit.”
Goldberg said as it stands now, code was followed.
“I think that the planning commission should have been involved earlier, but at the same time I don’t think there was a violation of code,” said Goldberg. “Because the current code just says it has to come to us. It doesn’t say when or at what stage.”
But Lende said this is about more then code.
“We also swear to uphold the laws of the State of Alaska and the Constitution of the United States,” said Lende. “And if we’re denying people due process, our code doesn’t supersede those things.”
“I don’t think we’re denying people due process, because we did see the plans,” said Goldberg.
Before the commission could vote, Schnabel withdrew her appeal saying she was satisfied with the fact that it prompted this discussion. She feels there is an understanding that mistakes were made.
The final appeal came from Sue Waterhouse, who argued the permit violated a part of borough code that says there needs to be a consistency review for this type of permit. She pointed to another piece of code that says the commission is responsible for implementing and enforcing the provisions of the Coastal Zone Management Plan.
“And I want to point to 7.2 of the Coastal Zone Management Plan,” said Waterhouse, “regarding the plans commission and having a coastal coordinator. There does not seem to be one.”
Public Facilities Director Brad Ryan, who applied for the permit, said they did look into whether they needed to do a consistency review.
“We brought the attorneys, we engaged them, and their opinion based on our code says ‘any project for which a federal permit is required is not subject to the local consistency review,'” said Ryan.
There was a lot of discussion around the Coastal Management Plan and how much of it is still applicable to borough code. Since the state did away with their plan, the local version references laws that no longer exist. There is a workshop on that topic scheduled for next month.
In the end, for Waterhouse’s appeal, the commission upheld Seward’s decision to grant the permit in a 5-2 vote, with Lende and Josephson opposed. Nelson and Waterhouse are planning to appeal the Planning Commission’s decisions to the Borough Assembly.
Editor’s Note: This story has been updated to reflect Sue Waterhouse’s statement that she will appeal the Planning Commission’s decision to the Borough Assembly.