Proposed Borough Ordinance That Would Hurt Trails Access Fails

An ordinance that would harm public access to trails in the Fairbanks North Star Borough was defeated at last night’s Assembly meeting.

Ordinance No. 2022-65, submitted by Assemblymembers Jimi Cash and Tammie Wilson, would have changed an existing borough law that requires Category A and B trails on the borough’s trails plan to be given an easement when subdividing land. At the meeting, it was replaced with a substitute ordinance crafted by Assemblyman Aaron Lojewski that kept the original ordinance wording and added a small financial incentive to anyone who voluntarily gives a trail easement. (The $400 final plat fee would have been waived.)

(Please see the end of this blog post for ways you can help advocate for trails now. Also, KUAC has a story on last night’s meeting.)

VETO THREATENED

During the debate on the ordinance, Mayor Bryce Ward said he would veto the ordinance if it passed. That raised some eyebrows. It is rare for a Fairbanks Borough Mayor to veto a significant piece of legislation passed by the Assembly. Also, it requires two-thirds of the Assembly to override the veto. That would be six of the Assemblymembers, but only five supported the ordinance.

LOJEWSKI’S SURPRISING VOTE

Assemblyman Lojewski voted for his ordinance to replace the original, as did the other supporters – Cash and Wilson along with Assemblymembers Barbara Haney and Brett Rotermund. But when a vote was taken on the substitute, Lojewski voted no, which killed the ordinance. (Also voting no were Assemblymembers Kristan Kelly, Savannah Fletcher, Mindy O’Neall, and David Guttenberg.) Lojewski’s no vote clearly surprised a lot of people. It certainly surprised me.

I have two guesses as to why Lojewski voted no. One, he saw that the ordinance would fail anyway if the Mayor were to veto it. I think Lojewski sees himself as a swing vote, the person in the middle who can help craft compromises. His yes vote, then no vote, could make him appear to be on both sides of the issue.

Or Lojewski’s no vote may have been just to leave his options open. Only a person on the prevailing side of a vote can move to reconsider. A move to reconsider allows the Assembly to again vote on the subject, though it succeeds only if two-thirds of the Assembly (six members) vote in favor. That happened a short while later in the meeting. O’Neall called for a motion to reconsider, and it got just five votes, with Lojewski voting in favor this time, so it failed.

(It’s also possible Lojewski is truly conflicted about the right course of action to solve the situation, which he suggested in an interview with KUAC’s Robyne.)

MAYOR WANTED MORE WORK ON ORDINANCE

Getting back to Mayor Ward. He made it clear he threatened the veto because no one had made a motion to refer the ordinance to the Platting Board or Trails Advisory Commission, something he had asked for earlier in a letter to the Assembly. (See third page here.) He said he wanted the borough administration to try to work out the issues brought up by the ordinance.

“You’ve got to work with the administration if you want my support,” Ward said.

ON ONE SIDE – PRIVATE PROPERTY RIGHTS

Political maneuvering aside, the debate basically divided into two camps. On one side were the Assemblymembers who said they were fighting for private property rights. They feel the current process forces private property owners to do something – give a trail easement – whether or not they want it. The ordinance supporters also don’t feel that trails are important enough to warrant the current easement protection during subdivision, which is given to other things, such as roads and utilities. Cash said roads and utilities are a “different animal,” and cited public safety as a reason they are different.

“Somebody’s recreational use of something cannot trump private property rights,” he said.

Cash clearly feels strongly about the issue. More than once he said people who advocate for use of recreational trails over the rights of private property owners should be “ashamed.” All the Assemblymembers who supported the change made it clear they feel strongly about the situation and are strong supporters of private property rights.

THE OTHER SIDE – TRAILS ACCESS (LOTS OF PUBLIC SUPPORT)

One the other side were those Assemblymembers who feel the current process sufficiently protects private property rights and who feel trails are important enough to get the same easement protection as roads and utilities. Besides speaking passionately for their side, they also cited the overwhelming public support for keeping the current trails easement protection. More than 25 people spoke against the ordinance at the meeting. None spoke in favor. Kelly said the Assembly received 164 emails supporting trails and 12 supporting property rights.

“The borough has spoken loud and clear that they want to protect their trail rights,” she said.

Fletcher said that the borough staff had reported that in the four decades the law has been in place, no one has objected. She said, one variance was asked for and given. O’Neall reiterated that later.

“If it’s not broken, then don’t fix it,” she said.

Kelly and Guttenberg also pointed out that the law will affect public landowners, such as state and federal agencies, and quasi-public agencies, such as the University of Alaska and Mental Health Trust. This was discussed a bit, but not nearly enough in my opinion.

I opposed this ordinance and spoke at the meeting. I wrote a previous blog post on why I oppose it and feel that the current law gives sufficient protections to private property owners. Also, only a very small portion of the affected trails cross private property, so I saw the proposed ordinance as a wrecking ball when we should have been considering a small crowbar. I will have more to report soon on the facts and figures of what is property is affected, which will help put the issue into context.

PROBABLY NOT OVER

I assume this issue will come up again. The overall trails plan update has not been approved by the Assembly. It is currently scheduled to be heard at the February 23 meeting. It may be that one of the Assemblymembers tries to pass an amendment to the trails plan regarding this or maybe the issue is enough to defeat the whole trails plan update. That would be very unfortunate. However, if that happens, the current trails plan would remain (unless a move is made to defeat it) and Category A and B trails in that plan would still retain the current easement protections.

It also may be that someone tries to work a compromise. I talked to Assemblyman Lojewski earlier in the week. He has some interesting ideas regarding trail protections, including possibly spending money to try to buy trail easements and having the borough create easements on all borough land for all A and B trails. I’ll report more on that if and when any of his ideas come up.

WHAT YOU CAN DO

Trail supporters should thank Mayor Ward and Assemblymembers Kelly, Fletcher, O’Neall, and Guttenberg for opposing this ordinance. They should also encourage Assemblyman Lojewski to explore ideas for trail protection that would have stronger support on the Assembly and with the Mayor. As we get closer to the February meeting regarding the trails plan update, I will have more ideas for advocacy.

NOT ANTI-TRAILS

At the meeting I told the Assembly that I didn’t consider any of them anti-trails. I still believe that to be the case. They may not agree with me and many others on what protections trails should have, but that doesn’t mean they are anti-trails. I encourage everyone to avoid avoid trying to put people into two camps of pro-trails and anti-trails. I also don’t see the issue as pro-private property rights and anti-private property rights. I think those labels are unnecessary and divisive. Let’s focus on the issues one at a time and find compromise where we can.

Eric Troyer