A Skagway petition to create a borough out of Alaska's first incorporated city should go back to the state Local Boundary Commission, which denied it three years ago, a Juneau judge has ruled.
Juneau Superior Court Judge Patricia Collins issued a 22-page ruling Monday in Skagway's appeal of the denial, finding the commission based its decision on a regulation it never properly adopted, ruling that Skagway was too geographically small to form its own borough.
"The commission remains free to deny the petition," she wrote. "However, any decision must be based on standards adopted by law."
Boroughs in Alaska are political subdivisions meant to consolidate local government. They range in geographic size from 850 square miles, for the Bristol Bay Borough, to 94,770 square miles, for the North Slope Borough.
Skagway City Manager Bob Ward said Wednesday that there has long been interest in forming a borough out of Skagway. As the state becomes more interested in forming more of them, "we want to make sure we're in a borough that meets our needs."
Skagway, the first Alaska city to incorporate, in 1900, borders the Haines Borough, which includes more than 2,300 square miles in addition to the unincorporated Haines town site. In the 1990s, the state Department of Community and Economic Development, which serves as the resource staff for the Local Boundary Commission, developed the Model Borough Boundary concept, which recommended combining Skagway with the Haines Borough, according to Collins' ruling.
The Haines Borough has not raised an objection to the Skagway petition. Collins pointed out in her ruling that its Assembly submitted a resolution urging the commission to approve Skagway's petition.
Ultimately, the commission concluded that at 443.1 square miles, Skagway was too small. It also found that with about 800 year-round residents, it didn't meet the population standard of 1,000.
In their appeal of the ruling, attorneys for Skagway noted that the commission granted a petition from Yakutat to form a single-city borough, although its population didn't meet the 1,000 standard.
Collins found that the commission's geographic size disqualification "effectively imposes a specific size standard for boroughs that wasn't stated when Skagway submitted its petition.
"This new standard is the functional equivalent of a regulation," Collins wrote. It interprets "flexible considerations" for borough incorporation set forth in the state constitution as if they were state law, she added.
"This action was taken without deference to the Administrative Procedure Act," Collins wrote. Skagway was not given "fair and statutorily required notice of the new standards."
Collins did not require the commission to hold a new hearing on the Skagway petition "unless it intends to apply new legal standards to the decision."
"The ball is in the (commission's) court," Ward said. He does not know yet if the state will appeal the decision. "We're trying to get our heads around this right now."
Alaska Assistant Attorney General Mike Mitchell said Wednesday he was still studying the ruling and did not know if there would be an appeal. "We'll have to talk to the commission," he added.
Although the state would provide up to $600,000 for a new borough to cover transitional costs, Ward said Skagway has agreed to waive the money, with its government already in place.
"I think our initial petition made a very strong case," Ward said. "We're a stronger community right now.
Tony Carroll can be reached at email@example.com.
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