I need to clarify something in my original post about proposed Ordinance No. 2022 – 65, which I feel would harm public access to trails in the Fairbanks Borough.
The proposed ordinance is before the Fairbanks Borough Assembly and will get a public hearing at the January 12 regular Assembly meeting. Here is my original post.
In that post, I had a couple of references to a substitute ordinance proposed by Assemblyman Aaron Lojewski. I did not go into detail about the differences between the ordinance and its substitute or into how ordinances and their substitutes work. My post was already too long.
But Assemblyman Lojewski reached out to me via email and feels I am portraying his actions inaccurately. He has a point. While the wording is my post is technically correct, it is not as accurate as it could be. My apologies to Mr. Lojewski.
Rather than try to fix my original post (which would make it much longer), I am addressing the issue here. I have broken the issue into three parts. The first part briefly compares how proposed ordinances and substitute ordinances work. The second part talks to the specifics of the particular ordinances. Lastly, I have my take on both ordinances.
A Proposed Ordinance vs a Substitute Ordinance
When someone introduces a substitute ordinance, it is not technically an endorsement or rejection of the original proposed ordinance. It is a change to the ordinance. In essence, as Assemblyman Lojewski reminded me, it “amounts to an amendment” of the original ordinance.
So, Assemblyman Lojewski’s proposed support should be viewed as just that, an amendment to the original proposed ordinance. Assemblyman Lojewski did not say whether he supported the original proposed ordinance and I didn’t ask.
Ordinance No. 2022 – 65 vs. Lojewski’s Proposed Substitute
The original proposed ordinance, introduced by Assembly Members Jimi Cash and Tammie Wilson, strips the current requirement for property owners to give an easement to Category A and B Trails in the borough’s Trails Plan upon subdividing their property. It also changes the current law’s wording to give the borough’s Platting Board more leeway in requiring that easement dedication.
Assemblyman Lojewski’s proposed substitute ordinance adds a financial incentive for any property owner voluntarily providing a trail easement: “If a property owner voluntarily dedicates a trail easement, the $400 final plat fee is waived and there is no fee for any lot through which the trail easement passes.”
Assemblyman Lojewski writes: “What this means is for someone who wants more public trail easements, they should view the substitute as an improvement of the main ordinance.”
Later in his email he wrote: “I am a trail user. I am also interested in providing more financial incentives for the public to acquire trail easements.”
My Take: I Agree But I Still Oppose Both Ordinances
I agree with Assemblyman Lojewski that his substitute ordinance is better than the original, but I oppose both. Like Assemblyman Lojewski, I like the idea of incentives to encourage actions to make our community a better place. However, I don’t feel the financial incentives he proposes would do nearly enough to offset the downsides of the ordinance.
I am fully in support of incentives to encourage property owners to allow public access to trails, but not at the cost of the protections we already have. If I believed private property rights were endangered by the current law, I would probably feel differently. But I am confident those rights are amply protected by our current law. Also, the proposed change would affect public as well as private landowners. I outlined my reasoning in my original post.
I hope you agree with me and oppose the original proposed ordinance and the substitute ordinance, but please understand that Assemblyman Lojewski’s substitute is a bit better than the original. Give him credit for that. Again, I apologize to Assemblyman Lojewski and to everyone else for not better representing the situation in my original post.
I keep thinking back to Assembly member Cash’s comment when the trails plan was discussed “It is a communist land grab.” As if the those who drafted the plan were drawing lines across private property to use eminent domain to take land from the landowner (as alluded to in the original post).
An examination of the the trails proposed as Category A or B trails shows that is the not the case. There are only a few trails that are not currently constructed. Of the existing trails, there is a long history of use. For example, I-A23 Salcha River Trail. I ski out there occasionally and I sure see a lot of people using the trail the access their private property out on the Salcha River. I am pretty sure I’ve seen people hauling mining equipment out there as well. I believe the first part does already cross private property. Do assembly members Cash and Wilson really intend that in the future access could be blocked for all the private landowners, and people with mining claims, who use that winter trail? No doubt if that land along the Salcha Winter Trail was subdivided and access blocked, there would probably be a lawsuit for prescriptive rights access. Why place that burden on the private property owners using the trail for access?
The same could be said for many of the other trails in the plan, perhaps aside from some of the recommended new trails that would become Category B.
I am still collecting my thoughts, but I am thinking my strategy for testimony will be to point out 1) the long history of use on the Category A & B trails, and 2) the wide variety of uses that rely on those trails (i.e., this isn’t just a bunch of lycra-clad, granola-crunching liberals attempting a communist land grab – just need to figure out how to say that, lol).
One thing that wasn’t clear to me, though, does the ordinance apply to the trails added 2006 or prior (e.g., I-A5 North Fork of the Chena Trail) or just the trails added in the 2022 update. Does anyone know the answer?
Just to clarify, the Salcha River Trail is already designated as an RS-2477. Yet, wouldn’t Borough Code 17.56.040 provide clarification for future landowners that an easement must be granted? Plus it allows the FNSB trails coordinator to work with landowners to reroute the trail. Ok, those reading this already know this, but curious to run these thoughts past others.
That’s a good point with RS2477 trails. Those can be turned into roads at some point. The RS2477 legislation allows that. But, as I understand it, if an RS2477 trail that’s on the trail plan would be protected as a trail. So, if the trail gets turned into road, then the land is subsequently subdivided, then a trail would have to be created to take place of the routing down the road. I’m not positive of that or how it would all work out. I’m not sure that it’s ever been tested.
Thanks Peter. Good thoughts here. Listing user types (skiers, snowmachiners, bikers, ATVers, hunters, fisherman, birdwatchers, dog walkers, etc) is a good way to show the broad use of trails.
This ordinance would affect all A and B trails in the current Trails Plan that do not already have an easement. The 2022 update has not been approved yet, so technically it would not affect them yet, but if the plan is adopted then it would affect them, too.
Correct, the RS2477 is for transportation and a separate trail would need be created if it turns into a road. But because of the RS2477 designation, there is already an easement across the property. Or some other legal easement. Bryant Wright confirmed for me trails 1-A1 to 1-A24 have some form of existing easement. For many of those situations, the trail on the ground no longer follows the easement, or perhaps someone built a house or driveway in the easement, etc. So when property with one of those trails is subdivided, it will be messy. Borough Code 17 attempts to resolve the alignment prior to it being a messy issue. And in the process also ensures a recreation trail remains. So…the idea that removing Borough Code 17 protects private property is misguided. If Ordinance 2022-65 passes, there WILL still be an easement across properties impacted by Category A trails, and many Category B trails, but the landowners (e.g., those wishing to subdivide and those wishing to exercise their right to the easement) will need to sort it out amongst themselves. This could be much, much messier than if Code 17 were in place.
The above argument does not focus on recreation, but with regard to private property rights, Ordinance 2022-65 basically does the opposite of its intent.
More coherently perhaps, as I understand it, the recreational trails plan is concerned with ensuring a recreational trail remains if an RS-2477 becomes a road (maybe it is the subdivision access road). However, the RS-2477 ROW might not immediately become a road and the RS-2477 and recreation trail may remain the same. Thus, the mitigation for the recreation trail also benefits the RS-2477 interests (i.e., the subdivision is platted with the trail/RS-2477 alignment that reflects reality, is sustainable, and works best for the lots). This would apply to other legal easements.