Assembly seeks out third-party legal opinion on trail easement, borough powers

Wilson said she received a legal analysis from Borough Attorney Jill Dolan which “left a lot of questions on whether trails were part of it [the borough’s powers].”

The memo, she said, notes that trails really aren’t mentioned “but we take it as it is because it’s part of parks and recreations.”

“I think it’s important because it’s such a big deal to our community that it shouldn’t just be the borough weighing in,” Wilson said. She acknowledged the outside opinion could go either way.

Assemblymember Barbara Haney agreed with a need for outside opinion, referencing research she did on state statute that dealt with conservation easements.

Wilson requested that Ketchikan attorney Scott Brandt-Erichsen be hired as the third-party lawyer. A former attorney for the Municipality of Anchorage and the Ketchikan-Gateway Borough, Brandt-Erichsen now works at Ketchikan law firm Keene & Currall and specializes in municipal law.

The fee for a third-party attorney would be paid out of the borough’s legal fund, which Dolan estimated had $40,000 remaining. Dolan estimated Brandt-Erichsen’s services would cost no more than $3,000.

Dolan’s memo discusses the borough’s mandatory platting and recreation powers and the need to balance the two. Platting and subdivision powers are outlined under Title 17 of the borough code, which requires easement dedications for existing trails at the time a parcel is subdivided. This can impact future development.

Wilson’s request comes on the heels of a decision to send a comprehensive trails plan update to the platting board with the task to find alternatives to a required easement.

Wilson and Assemblymember Jimi Cash previously sponsored an ordinance that would have changed the borough code’s required easement to make it an option private property owners could reject. The Assembly rejected the ordinance in 5-4 vote in February after Mayor Bryce Ward promised he would veto it.

“I don’t know that you would get a different opinion from another attorney,” Dolan said, noting Brandt-Erichsen’s municipal experience. “I think as far as options he is a good choice if you want a second opinion.”

Some assemblymembers, including Savannah Fletcher and David Guttenberg called the request a waste of taxpayer money. Fletcher added Dolan’s memo clearly outlines the borough’s authority for easement dedication and subdivision.

“[The request] is insulting to our legal team,” Fletcher said. “I know we’re allowed to ask for these services.”

Fletcher added she had to request Dolan’s opinion, noting it hadn’t been sent to the entire assembly.

“If I hadn’t requested that opinion, I am unclear if we would have even seen our own attorney had done work on this issue prior to this memo to seek outside counsel,” Fletcher said.

Guttenberg called the issue of subdivision settled law.

“If we can’t have trails, then we can’t have setbacks or road easements or anything else set up to planning and zoning,” Guttenberg said. “If we pass this and don’t like the lawyer’s opinion, are we going to hire another one to get the opinion we want?”

Wilson defended her request, citing the Assembly learned “the platting process is being used to take your property for a trail or even potential road we cannot build.”

“Just because they have been doing it for a long time doesn’t make it right,” Wilson said.

The Assembly approved hiring outside legal counsel in a 5-4 vote. Wilson, Haney, Cash and Assemblymembers Brett Rotermund and Aaron Lojewski voted yes. Fletcher, Guttenberg, Assemblymembers Mindy O’Neall and Kristan Kelly voted no.