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Juneau appeals Petersburg Borough boundary approval

Northern boundary overlaps area sought by CBJ

Posted: October 28, 2012 - 8:00pm  |  Updated: October 28, 2012 - 11:02pm
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The City and Borough of Juneau has filed a judicial appeal of the Local Boundary Commission’s decision to approve the northern boundary for the proposed Petersburg Borough, arguing that the commission failed to “critically analyze” the CBJ’s request to annex of some of the same land sought by the Petersburg Borough petitioners.

When the LBC handed down its decision earlier this year, there were two active petitions — one from the Petersburg Borough petitioners and one from the CBJ — requesting to incorporate the same area, which is currently unorganized. Both petitions remain active. No decision has been made on Juneau’s petition for annexation.

“We believe that the LBC had an obligation to critically analyze the CBJ’s competing claims as to that area … and that the LBC was obligated to do so before making a decision on Petersburg’s petition pursuant to Article 10, Section 3 of the Alaska Constitution,” said Assistant City Attorney Amy Mead, who is handling Juneau’s appeal.

Article 10, Section 3 of the Alaska Constitution (http://1.usa.gov/URt4sL) reads in part: “Each borough shall embrace an area and population with common interests to the maximum degree possible. The legislature shall classify boroughs and prescribe their powers and functions. Methods by which boroughs may be organized, incorporated, merged, consolidated, reclassified, or dissolved shall be prescribed by law.”

The CBJ’s argument is not well received by the Petersburg Borough petitioners.

“We don’t think it’s a good appeal,” said Jim Brennan, the Anchorage-based attorney representing the Petitioners for Incorporation of a Petersburg Borough. “We think that the Local Boundary Commission’s decision will stand.”

The CBJ filed its annexation petition last November, and it received public notice in April — months after the Petersburg Borough petition for incorporation, originally filed in April 2011, was taken up for consideration.

Of the LBC, Brennan asserted, “Their decision was supported by the testimony and the written filings and the record that they made a thoughtful decision. … As the commission made clear, they took into full account everything that was filed in the Juneau annexation petition in making their decision in the Petersburg matter.”

As to whether the CBJ’s allegation that the commission did not meet its obligation to properly weigh the annexation request against the request for incorporation, LBC staff’s Brent Williams said, “I think the decision speaks for itself.”

That decision (http://bit.ly/Y7yIpz) reads in part, “The proposed borough partly overlaps the area that Juneau seeks to annex by a separate petition. The commission considered Juneau’s claim to the overlapping area. The LBC also considered Juneau’s advocacy of its ties to the area containing the Goldbelt Inc. and others’ holdings. The commission further considered Juneau’s claim to Tracy Arm, and that Juneau has tourism and other ties to Tracy Arm.”

Tracy Arm, a popular tourist destination that attracts many visitors to Juneau during the summer season, was originally included in the area sought for incorporation into the Petersburg Borough. It was ultimately excluded, together with the Whiting River watershed, making them collectively the only part of the 1,977-square-mile area Juneau is currently seeking to annex that is not included within the proposed Petersburg Borough and effectively dividing the Tracy Arm—Ford’s Terror Wilderness area.

Mead said that the CBJ, not satisfied with the outcome, lodged its appeal of the decision Oct. 19 to the Superior Court.

Petersburg Mayor Al Dwyer has been vocal in advocating his city’s dissolution in favor of a home rule borough. He said he does not understand why Juneau is interested in the area the petitioners want to include in their proposed 3,829-square-mile borough, which includes Hobart Bay and stretches up to Endicott Arm, and that its annexation petition “irritated” him.

“They had years to annex that, or to increase the size of their borough, (and) decided against it for whatever reason,” Dwyer said. “And after we put in our request, they woke up and said, ‘Well, all of a sudden, we want it.’”

Dwyer added, “I don’t know why CBJ is interested in it, because they never were interested in it, and suddenly they are.”

Juneau Mayor Merrill Sanford said Juneau has actually been eyeing that area for years.

“Our boundary commission that looked at this five or six years ago had recommended that we incorporate down to that section whenever another city tried to annex or form and included any of that area, for us to go ahead then and work to annex it into our borough,” said Sanford, referring to the CBJ Annexation Study Commission that presented a report to the CBJ Assembly in early 2007 (http://bit.ly/PXt89g).

That report read in part, “The CBJ should be prepared to respond to, and if necessary, oppose, municipal boundary petitions or applications presented to the LBC by other municipalities in Southeast Alaska that encroach upon or would otherwise impact CBJ’s ability to annex its ‘ideal’ boundaries as identified by this Commission, at an appropriate time in the future.”

But the report also added, “The Commission recommends that the CBJ not file a petition to annex the territory … at this time because such action is not now necessary or warranted. However, annexation of this territory may be appropriate in the future.”

“We didn’t want to take those areas over if they were just going to be open zones,” Sanford explained. “People don’t like to be in boroughs or cities. That’s why we don’t have them everywhere yet.”

The Annexation Study Commission included the Hobart Bay area, which is also sought by the Petersburg Borough petitioners, within the “ideal” CBJ boundaries.

“The CBJ feels it has a closer connection to that overlap area,” said Mead.

“It’s been a traditional use of groups within the city and borough and recreation use for private people in the city and borough for years,” Sanford asserted.

In its brief supporting annexation (http://bit.ly/WQWCYi), as well as its responsive brief to the Petersburg Borough petition (http://bit.ly/Pyo77g), the CBJ laid out an argument that more Juneauites use the nearly uninhabited wilderness area in question for sport hunting and fishing. Much of the private land included in the area is owned by Native corporations based in Juneau, such as Goldbelt Inc. and Sealaska Corp., it added.

However, Karen A. Taug, chairwoman of Goldbelt’s board of directors, filed another letter with the LBC commenting on the Petersburg Borough incorporation petition back in March (http://bit.ly/VvjWFO). She expressed the board’s position that its land should not be taken in by either borough.

“This territory should be left in the unorganized borough that could be organized to include the territory of Kake, Angoon, and Hoonah, Native communities located in the Chatham–Icy Strait region,” Taug wrote. “We recognize that the creation of a ‘Greater Chatham/Icy Strait Borough’ would likely take several years, but the proposed annexation by Petersburg provides the impetus.”

Taug added, “While each of the Native communities would prefer no borough at all, we are convinced that the common bonds of culture, background, and families are far more appropriate together than any possible annexation that would couple these communities with largely non-Native urban areas.”

Dwyer said he does not see how the appeal can be resolved in time for residents of the proposed borough to decide on incorporation. The special election will be held Dec. 18, and ballots are expected to be mailed out to voters late next month,

“I don’t think anything’s going to be done until after the borough ballot,” said Dwyer. “If that fails, then you know, I guess Juneau has another shot at it. But I don’t think anything will transpire until after the vote.”

Mead stressed that the CBJ is not trying to derail petitioners’ aspirations to form a Petersburg Borough.

“We have no objection to the right of the people of Petersburg to incorporate as a borough,” Mead said. “We’re not asking, for example, for a stay or an injunction to require them to hold off on their election.”

But it is unclear what would happen were the borough vote to succeed only for the Superior Court to subsequently rule in favor of Juneau. Juneau City Attorney John Hartle told the CBJ Assembly at its Saturday retreat that he believes another vote might have to occur.

But Williams declined Friday to speculate on what instructions the judge might hand down if the CBJ wins its appeal.

“We will see how the court decides,” Williams said.

Ultimately, though, Dwyer said he does not see the appeal as having much of a chance.

“The LBC has done everything they’re supposed to, and we’ve done everything we’re supposed to,” said Dwyer. “I’d be very surprised if it got overturned.”

• Contact reporter Mark D. Miller at 523-2279 or at mark.d.miller@juneauempire.com.

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