A $70,000 truck scale built and operated without proper permits 28 feet from Lemon Creek is a recent example of what city officials described as their difficulty managing enforcement of the complicated Land Use Code.
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City Manager Rod Swope said Friday that it is not worth penalizing hundreds of Land Use Code violations each year because it is too pricey to allocate the city resources to do so.
"It's a policy," he said. "I think it's more of a friendly policy to work with people than to immediately start fining people when they are in violation, or taking them to court. I just think that is a much more positive way of dealing with things. And more effective."
But concerned citizen Dixie Hood disagrees and believes the city should enforce violations that have potential effects on the environment. She filed an appeal of an "after the fact" variance granted by the Juneau Board of Adjustment to the construction company Secon, Inc. for building its truck scale on Anka Street within the habitat setback of an anadromous stream. It is a matter of protecting the "streams as well as the public process," she said.
The Juneau Assembly will decide whether to accept the appeal of the variance filed by Hood at its regular meeting at 7 p.m. Monday at City Hall.
The truck scale, built within a required 50 foot setback, is just one of many code violations that overload the city. The city is dealing with what Swope estimated as "in excess of 300" code violations of varying degree. One enforcement officer handles all the violations, he said.
The maximum fine for such a code violation is $300 under state law. In extreme cases of noncompliance the city can file misdemeanor charges, according to City Attorney John Hartle.
"There's just no way to enforce every possible violation of the Land Use Code in the borough," Hartle said.
But Hood insists the city sets a bad precedent by not enforcing the Land Use Code when it comes to important community values like protecting local salmon habitat.
"It sets a terrible precedent for developers to go forward without a permit to accomplish the project and saying after the fact it would cost too much to undo it," she said. "And the city going along with that without even a slap on the hand."
John Logsdon, operations manager for Secon, said the company applied for numerous permits this winter to construct the truck scale only to later find out about a permit needed for the 50-foot setback.
Secon started the work because it had a limited window to have the scale certified by the state because the company was told the Weights and Measures truck was leaving town for an extended period, Logsdon said.
Secon built its own scale for the $27.5 million Sunny Point Intersection Project in part because there would have been a fee imposed on each truck if the company wanted to use the city's scale, he said.
"We understand that we didn't have the permits in place, but because of the time frame involved we started the work, asked for the permits and we've been trying to play catch up," Logsdon said.
When the violation of the Land Use Code came to its attention, Secon began mitigation and applied for a variance, he said.
The Board of Adjustment granted the variance at the May 22 Juneau Planning Commission meeting with certain conditions that included addressing concerns of erosion and runoff into the stream.
"We started the mitigation before it was asked of us and have done everything we've been asked," Logsdon said. "We'll continue to do anything we can to improve the situation. But we don't feel that we're necessarily the bad guys here that we're being made to be."
City officials had discussed shutting down the truck scale in April after the issue came to light, according to a chain of e-mails obtained by the Juneau Empire.
On April 19, Chief Regulatory Engineer Ron King sent Logsdon an e-mail regarding Secon utilizing the scale prior to any approval by the city, which primarily addressed traffic concerns. Logsdon replied swiftly to King, complying with a request to install a stop sign. King then forwarded the e-mails to top city officials and planners in the Community Development Department.
Planner Greg Chaney addressed concerns with the project in a bulk e-mail response to the city officials and planners.
"It seems inappropriate that they are being encouraged to operate without getting permits. The Planning Commission is supposed to have a role in approving this project. By letting this operation proceed without penalty, we as staff, have undermined the Planning Commission's authority," Chaney wrote.
"I have no problem shutting them down for not having a variance/permit and I probably should. Comments?" King replied the morning of April 20.
Swope - who said he learned of the issue through this e-mail exchange - replied later that afternoon directing Community Development to allow Secon to continue operating its truck scale.
"We should allow them to continue to operate and require them to come in for an 'after the fact permit and variance.' If they refuse and/or the request is denied, then we shut them down," Swope wrote.
When asked by the Empire why the scale wasn't shut down until the proper permits were obtained, Swope said the overall impacts of such a decision had to be considered.
"You also have to look at the situation and the potential benefits or loses," he said. "In this case, Secon has the project for Sunny Point."
"If we were to shut them down, I would in effect be stopping that project," Swope went on to say. "I think that was a very important consideration."
Working to find solutions to code violations is more beneficial than the city allocating valuable resources to impose fines, he said. When asked if imposing fines in such cases would deter developers from violating the city's Land Use Code, Swope said that would assume that most people are intentionally breaking the rules.
"I don't think the majority of the people in these 300-plus cases are knowingly doing it," he said. "I give people more credit than that."
Plus, taking legal action would be costly, and in most cases it is more effective to work with people to get them to correct their mistakes, Swope said.
Then why have such a complicated Land Use Code if the city will not fully enforce it?
"We do need to enforce it," Swope said. "I guess it comes down to what's your definition of enforcement?"
Logsdon said in his experience the city's permitting process is confusing and lengthy for developers.
"It's a tough system to negotiate," he said. "It's tough to find your way through the system with the city in terms of what permits you need in hand before you start."
Hood said the city needs to do more to enforce the Land Use Code that is in place for a number of reasons, such as protecting Juneau's natural resources. The city is sending the wrong message by not taking action, she said.
"It's so in violation of the public trust and the public interest, that's what really gets me," Hood said.
Eric Morrison can be reached at 523-2269 or firstname.lastname@example.org.
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