Ordinance Would Damage Public Access to Trails in Fairbanks Borough

Fairbanks trail advocates need to speak up.

Assemblymembers Jimi Cash and Tammie Wilson have introduced an ordinance that would remove an important part of protecting trails in the Fairbanks North Star Borough. Assemblyman Aaron Lojewski has introduced a substitute ordinance that is very similar. (This should not be taken as an endorsement or rejection of the original proposed ordinance. This post explains more.)

Mayor Bryce Ward has recommended that the ordinance be referred to the Platting Board for an official recommendation (see third page).

The proposed ordinance removes the existing requirement for property owners to grant an easement for A and B trails in the FNSB Comprehensive Recreational Trails Plan. (An update of the plan, which includes more trails, is being considered by the Assembly now.)

There are several popular trails that might or would definitely be affected by losing the trail easement requirement. At minimum we should research these to see how they might be affected and what landowners would be involved. Examples include the Yukon Quest Trail, the Equinox Marathon Trail, trails in and around Cleary Summit and Chatanika, trails connecting Skyline Ridge Park to the Skarland Trail, trails on and around Ester Dome, trails in the Goldstream Valley, and trails off Old Murphy Dome Road and into the Chatanika River valley.

PRIVATE PROPERTY RIGHTS ALREADY PROTECTED

The concern of Assemblymembers Cash and Wilson is understandable. A quick look at the requirement makes it seem as though the borough government is being heavy-handed, almost as though it is taking property away from a landowner for no good reason. But when you start to dig deeper, it becomes apparent that this is not the case.

I am a trails advocate and a private property owner in the borough. I strongly believe private property rights should be respected. I believe they are under our current system. Below I have written out my reasoning in the form of an ordinance. The first part outlines my points in their simplest form. Below that, I go into detail explaining how each of the points is justified.

TIME TO SPEAK UP

The Assembly will be discussing these ordinances during a worksession on January 5. However, no public testimony will be taken then. The proposed ordinances will be given a public hearing at the borough Assembly’s regularly scheduled meeting on Thursday, January 12.

If you agree that the trails easement requirement should remain, please let the Assembly know by calling assemblymembers or sending an email. At minimum, please ask that the ordinances be referred to the Platting Board and the Trails Advisory Commission. To call or send an email see this page. If you can, please attend the January 12 meeting. To find out more about attending, including how to attend by Zoom see this webpage.

(Note: The FNSB Comprehensive Recreational Trails Plan is still scheduled to be considered by the Assembly in February. Action on these proposed ordinances do not affect that.)

Regarding Caution About Ordinance No. 2022 – 65: An Ordinance Amending FNSBC 17.56.040, Trail Easements

WHEREAS:

• Private property rights are a foundation of our republic.
• The borough government recognizes the importance of private property rights.
• Private property rights do not mean an owner has complete freedom over their property with the Fairbanks North Star Borough (FNSB).
• Requiring a private property owner to create a trail easement should be as easy on the property owner as is reasonably possible.
• Without the Title 17 trails easement requirement, many currently used trails running across public lands or lands owned by large institutional owners may eventually be lost for use by the public.
• Trails are a highly valuable resource for the health of our residents.
• Trails are a highly valuable resource for our economy.
• Many trails in the Fairbanks North Star Borough are vulnerable.

NOW THEREFORE BE IT RESOLVED

The FNSB Assembly will not adopt Ordinance No. 2022 – 65 or its proposed substitute and will instead:

• Vote against Ordinance No. 2022 – 65: An Ordinance Amending FNSBC 17.56.040, Trail Easements, OR
• Refer Ordinance No. 2022 – 65 to the Platting Board and Trails Advisory Commission, OR
• Table Ordinance No. 2022 – 65 for further study

Detailed explanation of each point

Private property rights are a foundation of our republic:

• A private property owner should not be required to dedicate a public trail easement on their property unless they consent to the dedication, or a previous owner has consented to the dedication either through a formal public process or other formal, legal agreement.
• Trails are included on the FNSB Comprehensive Recreational Trails Plan only through a formal public process during which all affected landowners are contacted and allowed multiple opportunities to object or otherwise comment.
• The process for including trails in the FNSB Trails Plan must pass through several public borough government boards, each with a public meeting that allows for the public to comment, including the Trails Advisory Commission, the Planning Commission, the Platting Board, and the Borough Assembly.
• The Borough Assembly, as the borough’s Board of Adjustment, has the power to review and reverse Platting Board and Planning Commission decisions when an applicant appeals, regardless of the determination of the other boards.
  • In fact, in 2020 a variance was granted from the trail easement requirement to close a deal that added several hundred acres to the Creamer’s Field wildlife refuge, protecting portions of several ADMA trails. This Interior Trails Newsletter has a story about it, though the deal took a while to be completed in part because of the pandemic.
• A trail easement is NOT obtained by eminent domain, as it does not take land away from a landowner. Rather, granting an easement conveys to the public the right to use a defined corridor (usually 20-40 feet wide for trails) for access in a manner consistent with the restrictions of the easement, for example motorized vs. non-motorized.
• The FNSB Title 17 trail easement requirement only pertains to certain categories of trails in the Trails Plan. Those trails were chosen by the public during the planning process as the most important trails. Many trails in the borough are not in the existing trails plan or the proposed update.
• Property owners who choose to subdivide their property within the FNSB are consenting to all the subdivision regulations, including requirements to grant easements or rights-of-way for roads, utilities, waterways, trails, and other critical forms of access. These are all critical to property development in the borough.

The borough government recognizes the importance of private property rights:

• In updating the FNSB Trails Plan, the borough made every attempt to realign existing trails off private property and onto borough and other public lands.
• The draft updated Trails Plan recommends proactively working with landowners to gain public access by compensating landowners and purchasing missing easements through funding programs like state and federal grants or the FNSB Capital improvement Plan.
• The 2022 draft update of the Trails Plan does not include any new, unconstructed trails that cross private property that do not already have an easement or were objected to by the property owner.
• Trails in the existing Trails Plan (2006 and prior) already went through the extensive public process outlined above and so the landowners at the time consented to their inclusion.
• In recent developments – the most recent in the Goldstream Valley – the borough has declined to use certain legal methods, such as eminent domain or prescriptive easement, to fight for the rights of trail users on disputed trail segments without easements. Through its lack of action in these cases, the borough administration recognizes that the populace highly values private property rights.
• This tendency has lasted through several administrations of varying political tendencies including one led by a former borough Parks and Recreation Director and overall trails advocate.

Private property rights do not mean an owner has complete freedom over their property with the Fairbanks North Star Borough:

• Property owners must follow rules set out in zoning ordinances, such as lot sizes, construction setbacks, whether and what types of businesses or other activities are allowed, what types of buildings or other structures are allowed, etc.
• Property owners are required to give an easement for utility lines if a utility company demonstrates a specific need for them.
• Except in certain cases, property owners are required to provide legal access to all lots within a subdivision.
• Property owners must follow other laws passed by overseeing governments. For example, land owners cannot use their land in ways that pollute local waterways, and they must follow laws that help local economies, such as lighting ordinances that help protect Dark Sky Communities.

Requiring a private property owner to create a trail easement should be as easy on the property owner as is reasonably possible:

• Requiring a property owner to dedicate an easement for a trail only if the property is subdivided helps reduce the surveying costs.
• Landowners, working with the borough, have the right to move the trail alignment as part of the platting process.

Without the Title 17 trails easement requirement, many currently used trails running across public lands or lands owned by large institutional owners may eventually be lost for use by the public:

• Many trails in the FNSB Trails Plan run across public lands, such as those owned by the state Department of Natural Resources or the federal Bureau of Land Management. Those are now open to the public.
• Without the Title 17 trails easement requirement, if those lands are subdivided and sold, the new owners will not be required to allow access to those trails.
• Even the borough will not be required to provide an easement for trails.
• Many vacant lands affected by Trails Plan in the FNSB borough are owned by institutions, such as the University of Alaska, Native corporations, and the Mental Health Trust.
• Those institutions are often required by law or institutional rules to gain income from their land. If they are not required to give an easement to a trail upon subdividing, they will likely shut down the trail or require payment for the easement. However, with the easement requirement, they will comply.

Trails are a highly valuable resource for the health of our residents:

• Access to trails is a vital part of life in Fairbanks for a variety of activities, including mushing, snowmachining, skiing, biking, hiking, four-wheeling, hunting, fishing, birdwatching, and dog walking.
• Many studies have shown that getting exercise and getting out in nature is good for our physical and mental health, and happier, healthier people make for a happier, healthier community.
• Having many trails that are distributed widely throughout the borough helps ensure that people will have trails that are close to home and/or work and therefore more likely to use.

Trails are a highly valuable resource for our economy:

• As Alaska relies less on a petroleum-based economy it must turn to other resources, such as outdoor recreation, which is already growing across the state.
• Several studies have shown the importance of outdoor recreation to Alaska and the nation. Trails are a vital part of that economic sector.
• Several sporting goods stores in Fairbanks rely on trail users for a large part of their business.
• Hunting, fishing, and other consumptive uses of our natural resources contribute heavily to the outdoor recreation economy and often rely on trails to access fish and game.
• Many trail-based events that bring in visitors rely on trails. These include the Yukon Quest, the Iron Dog, the Open North American Sled Dog Race, and the Equinox Marathon. Lack of access to trails could drastically change or even shut down these events.
• A growing number of guiding businesses in the Interior rely on trails to give their clients a taste of Alaska.
• Independent visitors to Alaska often want to experience the wilderness that Alaska has to offer, and trails are one of the best ways to provide access to that wilderness.
• Several studies across the nation have shown that access to trails rates at the top or near the top of amenities preferred by prospective home buyers. Other studies have shown that property values rise when they are closer to trails.

Many trails in the Fairbanks North Star Borough are vulnerable:

• Many trails in the FNSB are not included in protected property, such as borough or state parks, but do provide off-road connections to these properties.
• Trails outside of these protected properties offer some wide-ranging trail experiences that are especially valuable for trail users who can travel long distances, such as snowmachiners, mushers, ATVers, and some bikers, skiers, and runners.
• Without easements, trails not on protected properties run the risk of being lost. For some trails, even if a small portion is lost, the trail is rendered practically useless due to lack of connection or lack of access.