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2014-09-215 Work Session Kodiak Island Borough Assembly Work Session Thursday, September 25, 2014, 7:30 p.m. Borough Conference Room Work Sessions are informal meetings of the Assembly where Assembly members review the upcoming regular meeting agenda packet and seek or receive information from staff.Although additional items not listed on the work session agenda are discussed when introduced by the Mayor,Assembly,or staff, no formal action is taken at work sessions and items that require formal Assembly action are placed on regular Assembly meeting agenda.Citizen's comments at work sessions are NOT considered part of the official record.Citizen's comments intended for the"official record"should be made at a regular Assembly meeting. Page 1. CITIZENS' COMMENTS (Limited to Three Minutes per Speaker) 2. AGENDA ITEMS 3 - 21 a. Transitional Housing Facility Discussion - Requested by Mr. Jonathan Strong KIB SlideShow Transitional Housinq.pdf Transitional Housing Request.pdf 22 - 26 b. Gulf Trawl Bycatch Management Development Letter tit, DRAFT KFWG Council Comments October 2014 w Reso.pdf 27 - 33 c. Bay View Road Service Area Road Guard Rail Funding From the Contingencies in Facilities Fund Atty Memo Opinion Bay View Service Area.pdf d. Assessing Department Update to the Assembly 3. PACKET REVIEW a. PUBLIC HEARING Ordinance No. FY2015-04 Amending the 2008 Comprehensive Land Use Plan to Change the Future Land Use Designation of Lot 1 Alagnak Acres From Urban Residential to Commercial Business. Ordinance No. FY2015-06 Amending Titles 1, 6, 8, 9, and 10 of the Kodiak Island Borough Code to Implement the Alaska Uniform Citation Procedure for Certain Violations of Borough Code. UNFINISHED BUSINESS Resolution No. FY2015-02 Reestablishing the Fees for the Kodiak Island Borough. Page 1 of 33 NEW BUSINESS RESOLUTIONS Resolution No. FY2015-10 Adopting a Schedule of Fines for Certain Violations of Borough Code. 4. MANAGER'S COMMENTS 5. CLERK'S COMMENTS 6. MAYOR'S COMMENTS 7. ASSEMBLY MEMBERS COMMENTS Page 2 of 33 AGENDA ITEM #2.a. 0 r in G.) t11 ... .§Wil I----- , E ; >, „. ....__....._, _0 ..,„ ,....,,- ., . QJ (i) * 1 .• < , ---/ 4 ', II be ,i ample0 CM s._ 0,1111119 fin }, ell cc .,,L., . ..„, r • Sigma C --.- j, 7 4; -----e- - i _ . - - i , MS ILIA AID : . _ -0 w. am .. ________J i ! . ' ,,"'Y rfr. /**6-.?,;■:".--a : - . >1' 1 4145,44741Mf 9=,. . . '-'age .3 or.33 Transitional Housing Facility Discussion - Requested by Mr. ... AGENDA ITEM #2.a. tin U, C WNW a C •Ill NM C Ste C ass Nis M 0 Q Li 0 Col Page 4 of 6,5 Transitional Housing Facility Discussion - Requested by Mr. ... AGENDA ITEM #2.a. 2 > N .. a 0 0 M N 0 N 0 ti O ry 1.0 V1 V M N 'i 0 0l 00 N LID IA V m N N 0 •i r1 rl 'i wY 21 rage 5 or is Transitional Housing Facility Discussion - Requested by Mr. ... AGENDA ITEM #2.a. a--+ Z ai N Z a O V) L 4-' co c3 � 0 a. a) V bet C 03 V C . CU QJ °' O .E CU a U O 0 0 cD . ® C 4--;ro tr) a E a ° C CS - 0 co .r� Page b 01 33 Transitional Housing Facility Discussion - Requested by Mr. ... AGENDA ITEM #2.a. . .r, v � n3 W ("( V In v) - 0)a ft) 0 cu aA th CD D -0 f3 •c? t s) c +1) c k:10 d — o c ® a) O Q E cu .E T o MOM CD C 0 � 0 C r0 Nage I OT 33 Transitional Housing Facility Discussion - Requested by Mr. ... H N NEGATIVE INFLUENCE co 91 0 N O C N gry o a> I tare, Fri voiftet Fks, 0 Community Cr ® User/ Dealer m `° o a . . G � m 4t _ N v AGENDA ITEM #2.a. • v K W Nom ao a ▪mia ▪mon 0 • rage 3 of 33 Transitional Housing Facility Discussion - Requested by Mr. ... AGENDA ITEM #2.a. e lan OMI C o 0 Nn� / \ Q cni \ / � CO CD CD t„ c13 LIM F- 03 •• p 0 rage l u 01 ea Transitional Housing Facility Discussion - Requested by Mr. ... H C) v 0 = Kodiak Community Partnerships that Established Transitional Housing 0 N -n The Salvation Army Rotary Kiwanis Q ❑ a Safe Harbor (aweKodiak . Kodiak Borough CD cn C 0 C ■ W.R.C.0 Lions OM State`CesAlaska 00 `n Fed Commitment till 2021 %' p Ct t t y.< 'Yam ryv t€' .M} i x ,a 3 'y'q.-e' DO ___ 00 D rn rn N tU H 0) CO. a v Occupancy Standard up (14 individuals) co N ' 4 .gyp k 90% Occapan&W cr C 1 CD m ❑Occupied 0 Unoccupied n, nit G y N Al AGENDA ITEM #2.a. n U V 0 C D ■ A f 5 a -2) h X d 0 MO U �.� tn`sh fi a • �{y CO c_ P .. /D . , ra O ^L' . F� co D .^tae '', fx--.„.. f rage Li of dci Transitional Housing Facility Discussion - Requested by Mr. ... AGENDA ITEM #2.a. %ii e • , Fy. 11.1' i:'� r t rs �{ ', }d , IY F j • a , , 4 1#f t ' Y FFFF t. ° b ' , F° °+ aj {Y Ali '' r.t. 4 ;1• f ']: • I. t 1 Ij 2 fit i it t • M� f rtfit e Ld 1 t r e ( c ayyr�,, 1 I•. r ,:t t i i d1. • . tt .: ;at , Page 14 of.SS Transitional Housing Facility Discussion - Requested by Mr. ... v 0 N O N Positive Impact in Kodiak C f 7 T 1 91 n 0 2018 t "�. 13€; D sp 2017 c O $ to Dealers a ii f a - • Medical $ 6 0 Jail/Court $ 2016 Pil• Tax $ A 2015 0.s °n (, 0 2 4 6 8 rn N ;a, H v co. co 0 • One Community Resource Not Being f co v Fully Utilized, Can Put A Strain on Others O N n y Trans. Housing Community 7 CEI 1aill/ Lawur 1rt Enforcem ent 43 s Hospital Non-Profits Rif g 1BMR IN 0 rn z °n co co Eri ° l/0. 0. m N iv AGENDA ITEM #2.a. ham .f CU .ID ° � .ffi� �`. ca a s. U °I-.+ p FF4 '" f, ui P k1/ ,---7!,;( Y® 4\ Mips";,d ti yyy f ¢ 41.. _I 4 t .P� , , V C� ' 0 cp 0 L.2.. •.y#4 x a -, w2} .x z i',-,114.1 T_j j 1.4 3' 73 sr s I c C '�,.g'�� v �°max- r d I "fir %i-,',-;(1..: N S in E h i _i___ r • • rage 1 ( or ea Transitional Housing Facility Discussion - Requested by Mr. ... AGENDA ITEM #2.a. KODIAK ISLAND BOROUGH PUBLIC AGENDAIPRESENTA11ON REQUEST FORM Desired data for the Item to appear on an Assembly agenda: 5 • //.. Gl tI e r Name: :lniiathei.i -S/1arnf Organization: �4� /; r Address: Pc• i%v /62L/ It id aI(l Ak 9Q1n/S 2e#: '23 Ills U�!'st/en�l� in.e,Y. cc. 1 Phone*: Cell N:512 �)9ri Email: J �/ ,J Please state the Item you wish to have placed on the agenda and submit any applicable documents with this form. •,, j /1 c( .'t j /fIIao,'I,`fy or) /7'7/55,ors r��a• a1- ficn /wreny. Please state the desired action of the Assembly: G• / I f,'I late.. it Comer,' ay dire tied sail(hon sCcPe-rSSC // uf/ 1'240_ 17}1;.5 cc,,,.,..,�..�, i�. Troo...C: 'henc_1 `lous,•r 'i'LIti I' Fy. To 1- -1p (pen c'.p 471/2 dial c L.);I- n stet►,.e_4,e\r1er5 -4t es4-&o sc, fteA t'• GZtCcyt..;V -1/4( IAVtc\er"S7cu-cl:nq, Do you wish to present this to the Assembly? x Yes No J Presentations are normally limited to 15 minutes. If more time is desired, please state how many minutes is requested: 20 mqujo, Do you need to have access to equipment for this presentation such as a computer,projector,DVD player?If so, please state the equipment needed below: Aeace.-.SC 't'D C2._wtr1L-er LA)1 ec Pt n+ t nci ?re5ECLAc•rl i 1-rnsr . Please see additional Information on the back of this form. RECEIV .• AUG 2 6 2014 eoaoKO�o • ALASKA • Page 18 of 33 Transitional Housing Facility Discussion - Requested by Mr. ... AGENDA ITEM #2.a. KODIAK ISLAND BOROUGH PUBLIC AGENDA/PRESENTATION REQUEST The Assembly meets on the first and third Thursdays of each month for their regular meetings and they normally meet a week before in work sessions before the regular meetings. If you have a specific topic that you would like the Borough Assembly to discuss at a future work session/meeting,OR if you wish to make a presentation to the Assembly, please complete this form and submit it to the Borough Clerk's Office.The item will possibly be scheduled for a future meeting or forwarded to Borough Staff for appropriate action, Please return this form to: Nova M.Javier,MMC,Borough Clerk Kodiak Island Borough 710 Mill Bay Road,Kodiak,AK 99615 Email:nlavierrUkodlakak.u$ Phone:(907)486-9310 Fax:(907)486-9391 For Staff Use Only: r� `"}�� Received by the Clerk's Office on: o1ria (,, I(Jr`�VrtU Distributed to the Manager/Assembly on: t/1S /d-Vi`9-o[IF Discussed at the agenda setting on: Approved for agenda item on: Work session date: Regular meeting date: Informed requestor on: Notes: r 1 , Page 19 of 33 Transitional Housing Facility Discussion - Requested by Mr. ... AGENDA ITEM #2.a. Transitional Housing Facility on Mission Road Statement As Kodiak has been experiencing an increase in drug activity,one factor that can play a significant role in such an increase is the decrease in the accessibility of safe and sober housing for those citizens who struggle with substance abuse issues who desire to make a positive change. If a resident only has access to housing with other drug/alcohol users or in neighborhoods where drugs are prevalent, it's nearly impossible to stop using, remain sober and lead a productive life. In my experience the most cost effective and successful method of decreasing drug activity is by decreasing the demand for drugs. I conservatively estimate that 5500K to$600K of federal, state,city and borough taxpayer funds have already been invested to build and operate a community resource here in Kodiak specifically to provide safe and sober transitional housing for Kodiak residents. In approximately 2005-2007 the Kodiak community recognized the need for transitional housing.and organizations like the Rotary, Kiwanis,Lions Club,Safe Harbor Counseling Center,and the Women's Resource and Crisis Center all contributed to either the planning or building of a 16 bed transitional housing facility on Mission Road at The Salvation Army;which committed to providing transitional housing services to Kodiak residents with drug/alcohol issues for 15 years. The State of Alaska has provided funds for FY 2014-2015 to residents requesting financial assistance to enter transitional housing at The Salvation Army. Up to 16 men and women can be housed at any one time, 16 husbands,brothers,sons,wives, mothers,sisters,friends and employees could have the opportunity to change.This would have a tremendous positive impact in Kodiak and save resources in the court system, jail, law enforcement,medical providers&emergency response services, and reducing lost tax revenues from unemployment,Iost productivity and lose of income to drug dealers instead of an individual's savings or spending at local businesses. If our community is not fully utilizing its current resources,duplicating services or even worse not providing needed services, it puts a strain on other organizations within Kodiak. This is a resource that can be making an impact right now,with no additional funding,only an investment of will and leadership to facilitate a dialog with community stakeholders to develop a community directed plan to successfully utilize this valuable resource. Jonathan Strong,Chemical Dependency Counselor:PO Box 1024 Kodiak,AK 99615 p:512-5199 e:jonjstrong @ymail.com Page 20 of 33 Transitional Housing Facility Discussion - Requested by Mr. ... AGENDA ITEM #2.a. Transitional Housing Facility on Mission Road summary I. Increase in drug activity correlates to a decrease in the accessibility of safe and sober housing. II. Estimate:$500K-$600K of Federal.State,City and Borough taxpayer funds already invested in a Kodiak community resource to build and operate a safe/sober transitional housing facility. State has provided funds for FY 2014-2015. Ill. In approximately 2005-2007 Kodiak community organizations: Rotary, Kiwanis, Lions Club, Safe Harbor Counseling Center and the Women's Resource and Crisis Center all contributed to either planning or building of a 16 bed facility on Mission Rd. at the Salvation Army:which committed to providing transitional housing to Kodiak residents with drug/alcohol issues for 15 years. IV. If fully utilized,can have a tremendous positive impact in Kodiak,saving other resources e.g.,Jail/ Law Enforcement/Medical Providers/Emergency Medical Response Services and reducing lost tax revenues from unemployment, loss of production and loss of income to drug dealers instead of Kodiak residents and businesses. V. Community resources not being fully utilized can cause a strain on other Kodiak organizations.This is a community resource that can have an impact right now,with no additional funding. Jonathan Strong,Chemical Dependency Counselor:PO Box 1024 Kodiak,AK 99615 p:512-5199 e:jonjstrong aymail.com Page 21 of 33 Transitional Housing Facility Discussion - Requested by Mr. ... AGENDA ITEM #2.b. N,sdao P K; - . ou p��,a AS Kodiak Island Borough City of Kodiak 710 Mill Bay Road, Rm. 101 710 Mill Bay Road, Rm. 216 Kodiak,AK 99615 Kodiak, AK 99615 907.486.9310 907.486.8636 September 26, 2014 Chairman North Pacific Fishery Management Council Re: Agenda item C-7, GOA Trawl Bycatch Management Dear Chairman: The City of Kodiak and Kodiak Island Borough continue to actively participate in the GOA Trawl Bycatch Management action to provide the North Pacific Council with the views of our community as a whole. The Kodiak Fisheries Work Group has discussed the GOA TBM at monthly public meetings since April, understanding the outcome of this action will have profound effects on our community as well as on harvesters and processors. Kodiak municipal leaders consider the community to be the necessary"third leg of the stool." The welfare of all three of these sectors will continue to be our focus as the Council moves forward. By Resolution (attached),the City and Borough identified ten community goals, which continue to guide the community in discussing the proposed management program. First on this list is to provide effective controls of prohibited species catch and other bycatch, to provide for balanced and sustainable fisheries and healthy harvesting and processing sectors. We continue to strongly support the Council's initiative to reduce bycatch and encourage timely Council progress in advancing a cooperative management program as a tool in this effort. The City and Borough welcome the opportunity to comment on several key components of the GOA TBM motions that apply specifically to community concerns. The following are the key areas for community consideration: 1. Consolidation. Quota consolidation limits (quota control caps and vessel use caps) and processing caps for processors. Consolidation of licenses on fewer trawl vessels does not affect the total amount of harvest or the associated landing taxes/processing revenues and processing employment opportunities(assuming historic community delivery patterns are maintained), but it can impact the number of available crew jobs, shares paid to crew, and the amount of demand for shore-based support services. Page 22 of 33 Gulf Trawl Bycatch Management Development Letter AGENDA ITEM #2.b. NPFMC Letter September 26, 2014 Page 2 The community recognizes avoiding all consolidation could reduce the management efficiencies that are the heart of a cooperative structure, and at this point supports the range of consolidation limits for both harvesters and processors in the April Council motion, pending further analysis. In addition, the community supports further analysis of grandfathering in quota control and processing levels in excess of the caps, including analysis of the concept of specifying a time period after which quota control in excess of the cap must be divested (sunset provision). The community also recognized the importance of retaining and further analyzing vessel use caps that are applicable within cooperatives. 2. Regionalization. Regionalization of quota based on historical delivery patterns. Regionalization applies to target species only and is a measure to preserve historical delivery levels to shore-side processors in each management area. As the regional landing requirement would specify landings only as Central Gulf(CG) or Western Gulf(WG), the motion also contains an option that would require target species CG quota historically landed in the port of Kodiak to continue to be landed in the port of Kodiak. The intent of regionalization (and port of landing requirement) is to maintain processing levels and the associated employment opportunities at or near historical levels. At this time, the community supports keeping both the regional and the port delivery requirements as elements for further analysis in the proposed program. 3. Fishery participation criteria. Participation criteria thresholds that define eligibility for the purchase of trawl licenses and/or history/quota. Currently persons (the definition of which includes individuals, corporate entities and government and community entities) must be able to document a fishing vessel to hold and purchase an LLP, and to purchase and hold quota. The proposed program does not currently include additional participation criteria for the applicable fisheries. The FWG wants to retain the ability for communities to hold quota in the program. 4. Community representative in cooperative.An option where the community in which the processor is located would also be required to sign the cooperative contract, potentially allowing the community to support cooperative practices that meet community goals and objectives. There are two levels at which the community can play an active role in the contract development process—the regulatory level and the cooperative management level. At the first level, the community believes that the cooperative contracts should embody the goals of the community, which should be built into the contract requirements by regulation. Regarding the cooperative management level, the community supports further analysis of the concept of community participation and approval at the inter-cooperative level. In addition, the community supports cooperatives providing quarterly performance reports to the community. 5. Ability to sever target quota from a license. The ability to sever target species history from a license and transfer it to another license. This element would allow for a smaller piece of target species history to be severed from a trawl license (as opposed to purchasing the entire license), and used on a latent trawl license, allowing Page 23 of 33 Gulf Trawl Bycatch Management Development Letter AGENDA ITEM #2.13. NPFMC Letter September 26, 2014 Page 3 for new entry at lower cost. The community supports this concept going forward for analysis, including the concept of providing for a maximum amount of history that could be severed from each license. 6,CFA proposal. Despite not yet having the discussion paper on the CFA proposal, the community supports moving the CFA concept forward for further analysis. We would like to see a side-by-side analysis of the proposed management program's potential attainment of the Council's goals and objectives both with a CFA, and without a CFA. 7. Additional comments on proposed management design. The community supports expanded analysis of the potential inclusion of target species in addition to pollock and cod, particularly the implications for the limited access fishery and new entrants. The community also recognizes the potential difficulties in opening a limited access fishery with a small amount of quota, and supports continued analysis on this aspect of the proposed program. Thank you for undertaking the important work of designing and implementing this trawl bycatch management program, for the benefit of the harvesters, processors and Gulf of Alaska communities. The City of Kodiak and the Kodiak Island Borough look forward to continuing their active involvement in the process. Sincerely, Jerrol Friend, Mayor Pat Branson, Mayor Kodiak Island Borough City of Kodiak Page 24 of 33 Gulf Trawl Bycatch Management Development Letter AGENDA ITEM #2.b. 1 Introduced by: Borough Assembly 2 Requested by: Kodiak Fisheries Workgroup 3 Drafted by: Borough Clerk Introduced on: 09120/2012 4 Adopted on: 09/20/2012 5 6 KODIAK ISLAND BOROUGH 7 RESOLUTION NO. FY2013-10 8 9 A JOINT RESOLUTION OF THE KODIAK ISLAND BOROUGH ASSEMBLY AND THE 10 CITY OF KODIAK COUNCIL SUPPORTING COMMENTS TO THE NORTH PACIFIC 11 FISHERY MANAGEMENT COUNCIL ON PENDING ACTIONS REGARDING 12 COMPREHENSIVE MANAGEMENT OF PROHIBITED SPECIES CATCH (PSC) BY THE 13 TRAWL FISHERY IN THE CENTRAL GULF OF ALASKA 14 1s WHEREAS, the North Pacific Fishery Management Council is considering the need for 16 and beginning development of a comprehensive program to manage prohibited species 17 catch by the trawl fleet of the central Gulf of Alaska; and 18 19 WHEREAS, any such comprehensive management program for fisheries in the central 20 Gulf of Alaska will have major and direct effects on the economy and well-being of 21 residents of the Kodiak region;and 22 23 WHEREAS, National Standards of the Magnuson-Stevens Fishery Conservation and 24 Management Act require that federal fishery management decisions take into account the 25 importance of fishery resources to fishing communities, in order to provide for the 26 sustained participation of such communities and minimize adverse economic impacts on 27 such communities; and 28 29 WHEREAS, the Kodiak Island Borough and the City of Kodiak represent the 30 communities of the Kodiak region, rather than individual user groups or fishing interests; 31 and 32 33 WHEREAS, the Kodiak Island Borough and the City of Kodiak have begun a program to 34 participate directly in public processes for fishery policy decision-making as outlined in 35 Resolution No. FY2013-09 of the Kodiak Island Borough 36 37 NOW, THEREFORE BE IT JOINTLY RESOLVED BY THE KODIAK ISLAND BOROUGH 38 ASSEMBLY AND THE CITY OF KODIAK COUNCIL that these bodies support the Kodiak 39 Fisheries Workgroup's proposed overarching purpose for consideration of fishery 40 management issues of interest and concern to the Kodiak region as follows: 41 42 Overarching Purpose: 43 1. Maintain healthy, sustainable resources in the central(and western) Gulf of Alaska. 44 2. Promote a sustainable, vigorous economy in the Kodiak region with healthy and 45 competitive harvesting and processing sectors and support industries. 46 3. Maintain quality of life and social well-being in Kodiak. Kodiak Island Borough Resolution No FY2013-10 Page 1 of 2 Page 25 of 33 Gulf Trawl Bycatch Management Development Letter AGENDA ITEM #2.b. 47 48 NOW,THEREFORE BE IT FURTHER JOINTLY RESOLVED BY THE KODIAK ISLAND 49 BOROUGH ASSEMBLY AND THE CITY OF KODIAK COUNCIL that these bodies 50 support the Kodiak Fisheries Workgroup's proposed goals for management programs as 51 follows: 52 53 Goals for Management Programs: 54 1. Provide effective controls of prohibited species catch and other bycatch to provide 55 for balanced and sustainable fisheries and healthy harvesting and processing 56 sectors. 57 2. Maintain or increase target fishery landings and revenues to Kodiak. 58 3. Maintain or increase employment opportunities for vessel crows, processing 59 workers,and support industries. 50 4. Provide increased opportunities for value-added processing. 61 5. Maintain opportunities for fishermen to enter the fishery. 62 6. Maintain opportunities for processers to enter the fishery. 63 7. Minimize adverse economic impacts of consolidation of the harvesting or 64 processing sectors. 65 8. Maximize active participation by owners of harvesting vessels and fishing 66 privileges. 67 9. Maintain the economic Strength and vitality of Kodiak's working waterfront. 68 10.Establish methods to measure success and impacts of all programs, including 69 collection and analysis of baseline and after-action data. 70 71 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH 72 THIS TWENTIETH DAY OF SEPTEMBER, 2012 73 74 75 KODIAK ISLAND BOROUGH 76 77 1f 78 79 ATT..T: Je . —�' mo wf Selby, �_ - fi is .r 80 81 82 I t 83 Nrjya M. Javier, MMCi Borough Clerk Kodiak Island Borough Resolution No. FY2013-10 Page 2 of 2 Page 26 of 33 Gulf Trawl Bycatch Management Development Letter AGENDA ITEM #2.c. LEVESQUE LAW GROUP, LLC 3380 C Street,Suite 202 Anchorage,Alaska 99503 Phone: (907)261-8935 Fax: (206)309-0667 Email: joe @levesquelawgroup.com MEMORANDUM OPINION TO: Bud Cassidy, Manager Kodiak Island Borough FROM: Joseph N. Levesque Borough Attorney t� DATE: September 9, 2014 RE: Bay View Service Area Liability Our File No. 477-1502 The Kodiak Island Borough ("Borough") has asked our Firm to review the role of the Borough's road service areas in providing improvements to address safety hazards. Specifically, you wish to know whether the Borough is under any obligation to independently finance the installation of a guardrail within the Bay View Service Area ("Service Area"), or whether the guardrail should instead be financed by means of tax revenues raised through an increase to the mil rate of the Service Area's members. As this Memorandum explains, the question of whether the Borough has any legal duty to install the subject guardrail appears to be entirely separate from the question of whether the Borough is permitted by law to itself pay for the guardrail, or whether the funds needed to complete its installation must instead be raised by means of a mil increase or special assessment against those taxpayer properties within the Service Area. Ultimately, this Memorandum concludes that to the extent that the Borough may in any way be exposed to some threat of liability it should consider taking action to assist the Service Area to provide for installation of a guardrail. Further, while the Borough is prohibited by law from contributing any monies from the Borough's general revenue fund, it is obligated to assist the Service Area with raising the funds • required to complete the installation, either by approving or authorizing a mil increase, levying a special assessment, or identifying other funding opportunities. Page 27 of 33 Bay View Road Service Area Road Guard Rail Funding From the ... AGENDA ITEM #2.c. LEVESQUE LAW GROUP, LLC Bud Cassidy, Borough Manager September 9, 2014 Page 12 Background The Service Area was apparently established in or around 1986.1 The purpose for which it was established was to empower the area residents, through the Borough, to exercise"Road construction and maintenance powers" within the Service Area. Bay View Road was apparently constructed shortly after the Borough established the Service Area. The level of road maintenance services performed within the Service Area since its creation is unclear. However, it may be that the Service Area has kept its expenditures "minimal and only [makes them] when absolutely necessary."2 Recently, the Service Area's Board appeared before the Borough Assembly and requested funding for the installation of a guardrail at an intersection along a roadway falling within the Service Area.3 It appears that, since the road's construction, two cars have slid through the intersection at Monashka Circle and Bay View Road, over the side of a 10-foot embankment, and onto private property.4 There is apparently some concern that the intersection may present a safety issue during winter months, during periods in which the road has received little or no maintenance, and especially after rainfall occurs when there is snow on the road. Apparently, the stamped plans for the road's construction do not include a guardrail as part of the project.5 The Service Area Board asserts that because the Borough technically owns the Bay View Road, the Borough is responsible for the installation of the guardrail, with the Board responsible only for the maintenance of Bay View Road and Monashka Circle.6 Liability of Service Areas Versus Boroughs The Alaska Supreme Court explained in North Kenai Peninsula Road Maintenance Service Area v. Kenai Peninsula Borough'that As a general rule, only independent legal entities may sue or be sued."5 Alaska law has specifically conferred corporate status upon boroughs and cities, as well as the right to sue and to be sued.9 However, as the Alaska Supreme Court explained with respect to the Kenai Borough: 1 See KIBC 4.90.010; August 15, 2014 Email from Bud Cassidy to Joseph N. Levesque. 2 August 15, 2014 Email from Bud Cassidy to Joseph N. Levesque. 3 Id. 4id. 5 September 8, 2014 teleconference with Bud Cassidy. 6 August 22, 2014 Bay View Service Area Board Special Meeting Minutes. 850 P.2d 636 (Alaska 1993). 6 Id.. 9 Maintenance Serv. v. Kenai Peninsula Borough, 850 P.2d at 639 (citing AS 09.65.070- .080, AS 29.04.010-.020; AS 29.35.010(14)). Page 28 of 33 Bay View Road Service Area Road Guard Rail Funding From the ... AGENDA ITEM #2.c. LEVESQUE LAW GROUP, LLC Bud Cassidy, Borough Manager September 9, 2014 Page 13 A service area is a specific geographical area within which a municipal service is furnished by a borough. Its powers derive from statute, charter and ordinance. Service areas have no corporate status or right to sue under any Alaska statute. Neither the Kenai Borough charter nor Borough ordinances confer such status or right. Therefore, the North Service Area does not have standing to sue the Borough.10 The State of Alaska Local Boundary Commission has described service areas similarly, stating that: 'Service area' means an area in which borough services are provided that are not offered on an areawide or nonareawide basis, or in which a higher or different level of areawide or nonareawide services are provided. Borough service areas are not local governments; service area boards lack legislative and executive powers.11 Because municipal service areas are likely not legally separable from municipalities, it seems to follow that liability would in no case attach to service areas, but would instead pass through to the borough that created it. This conclusion is buttressed by the fact that municipalities maintain ultimate control over service areas. For example, the Kodiak Island Borough Code ("KIBC") provides that a board shall supervise each service area,12 which enjoys the authority to adopt a service area work program, as well as an operating budget and capital budget.13 However, because service area boards lack legislative powers, all programs and plans are made expressly subject to the Borough Assembly's approval.14 This indicates that service areas are merely dependent subdivisions, incapable of being held separate from their parent boroughs for purposes of legal liability. Unfortunately, the Alaska Supreme Court has not yet addressed the issue of whether municipal service areas may be held liable for an alleged failure to perform a legal duty, or whether that liability flows through the service area and attaches to the borough that created it. However, to the extent that the Alaska Supreme Court's 10 850 P.2d at 639 (citing Waller v. Butkovich, 584 F. Supp. 909, 925 (M.D.N.C. 1984); Meyer v. City and County of Honolulu, 729 P.2d 388, 390 n. 1 (Hawaii App. 1986) affd in part, reversed in pad, 69 Haw. 8, 731 P.2d 149 (1986). 11 State of Alaska, Local Boundary Commission, "Local Government in Alaska", available at http://commerce.aaska.gov/d n n/Portals/4/pub/Local Gove rn mentinAlaska032004.pdf 12 KIBC 4.15.010. 13 KIBC 4.20.030(A)-(B). 14 KIBC 4.20.010. Page 29 of 33 Bay View Road Service Area Road Guard Rail Funding From the ... AGENDA ITEM #2.c. LEVESQUE LAW GROUP, LLC Bud Cassidy, Borough Manager September 9, 2014 Page 14 decision in Maintenance Service Area v. Kenai indicates this is the case, it is important to determine whether the lack of a guardrail at the intersection of Monashka Circle and Bay View Road could potentially expose the Borough to risk. The Borough's Potential Liability Although the Alaska Legislature has generally waived absolute sovereign immunity for the State and its political subdivisions, AS 09.65.070(d)(2) provides that no actions for damages may be brought against municipalities, or any of its agents, officers, or employees if the claim is based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty...." This "discretionary function exception"excuses municipalities from liability for damages resulting from "planning"decisions, but holds municipalities liable for the "operational"decisions made for the purpose of carrying out a plan. 5 In this instance the facts known are insufficient to make an accurate legal determination regarding potential liability. For that reason, as well as the unpredictability of Alaska's law of negligence, it is always prudent for the Borough to exercise an abundance of caution when approaching such issues. However, the determination as to whether municipalities may be held liable for their actions in many cases comes down to whether the municipality's action was discretionary or operational in nature. For example, in State v. Abbott, the Alaska Supreme Court determined that, while the State of Alaska's decision to perform winter maintenance on the Seward Highway was immune from liability pursuant to the discretional function exception, its decisions related to how the maintenance would occur were not immune.16 According to this logic, there always exists a possibility that a municipality may be held liable for certain actions, depending upon how a reviewing court interprets the chain of decision-making that leads to the alleged negligent act. Because of this possibility, and the Borough's interest in exercising an abundance of caution, it would be prudent for the Borough to actively assist the Service Area with finding some solution to assist it with financing the installation of the guardrail.' 75 See Gates v. City of Tenakee Springs, 822 P.2d 455, 459 (Alaska 1991); Plancich v. State, 693 P.2d 855 (Alaska 1985); Urethane Specialities, Inc. v. City of Valdez, 620 P.2d 683 (Alaska 1980); State v. Abbott,498 P.2d 712 (Alaska 1972). is State v. Abbot, 498 P.2d at 717-722. t7 Of course, the Borough should also consider whether a guardrail is truly needed. Before taking any action, the Borough should consider engaging a qualified engineer to examine the location and to determine whether a guardrail is required under all applicable standards, or whether some other precaution is sufficient. Page 30 of 33 Bay View Road Service Area Road Guard Rail Funding From the ... AGENDA ITEM #2.c. LEVESQUE LAW GROUP, LLC Bud Cassidy, Borough Manager September 9, 2014 Page 15 Responsibility for Funding the Installation Although the prudence of the decision to install a guardrail is clear, the method by which the Borough procures funding for the installation is not as cut and dry. It is apparently the Service Area's position that the Borough is responsible for procuring the funding for the installation of the guardrail by some means other than through the levy of a tax or special assessment upon the properties within the Service Area.78 The Service Area Board has justified this position by stating that the Service Area is responsible only for the maintenance of roads, and not for their improvement or construction.19 A review of the Borough Code does not seem to support the Board's argument. For example, KIBC 4.90.010, which authorizes the creation of the Service Area, does not limit its scope to road maintenance alone, but instead explicitly grants the authority to exercise road construction powers. In fact, nothing within the Borough Code appears to assign or reserve respective funding responsibilities to the Borough or the Service Area at all. In fact, Alaska law prohibits the Borough from expending general fund revenues obtained through the collection of taxes on anything other than general administrative costs and on areawide functions.2° Because the provision of road construction and maintenance services to the Service Area do not represent either general administrative costs, and are special services that the Borough does not provide on an areawide basis, the Borough may actually be prohibited from funding the installation of a guardrail through the use of general fund revenues. It is perhaps in recognition of this fact that the Borough Code states instead that the Borough "jA)ssembly may levy or authorize the levying of taxes, charges, or assessments in a service area to finance the special services."2t While the Service Area may enjoy some authority to suggest a rate of taxation, charges, bonds, or assessments necessary to meet the service area's needs,22 such suggestions are made expressly subject to the Assembly's approval.23 Although the Borough is not permitted—and is therefore not obligated—to finance the installation of a guardrail through use of its general funds, the Borough could choose to itself pursue and obtain funding by means of a grant from the State,24 or 1fl August 22, 2014 Bay View Service Area Board Special Meeting Minutes. 19 Id. �°AS 29.35.110(a). 21 KIBC 4.20.015. 22 KIBC 4.20.030. 23 KIBC 4.20.015. 24 See, e.g., Anchorage Board of Adjustment v. LBJ, LLC., 228 P.3d 87, 91 (Alaska 2010)(in which the Anchorage School District argued that the Municipality of Anchorage Page 31 of 33 Bay View Road Service Area Road Guard Rail Funding From the ... AGENDA ITEM #2.c. LEVESQUE LAW GROUP, LLC Bud Cassidy, Borough Manager September 9, 2014 Page 16 could consider enacting an ordinance authorizing the provision of a loan to the Service Area to cover the costs of installing the guardrail 25 It would not be inappropriate, and would in fact be entirely consistent with Alaska law, if the Borough instead exercised its authority to levy a tax or special assessment to finance the installation. First, the imposition of such a tax would likely not require the approval of voters living within the service area.Zb In FNSB v. College Utilities, the borough levied a general tax within the College Service Area, for the purpose of making improvements to an existing road within the service area.27 A citizen challenged the general tax on the grounds that the improvements constituted construction, and that the residents of the service area must approve taxes levied for construction, as opposed to maintenance.28 The Alaska Supreme Court disagreed with the challenger, noting that the borough ordinance creating the service area specifically, as is the case here, stated that it would have "road construction and maintenance powers."29 Consequently, the Borough could properly require that the taxpayers residing within the Service Area finance the installation of the guardrail by means of a general levy or special assessment. Second, even if the Borough were permitted to finance the installation of the guardrail using its general funds, requiring the taxpayers who own property within the Service Area to fund the installation of the guardrail would, as a matter of sound public policy, seem consistent with the spirit and the intent of the philosophy permitting the creation of municipal service areas. AS 29.35.450(a) recognizes that the purpose of establishing municipal service areas is so that a borough may endeavor to meet the special needs of a community within it, but that in many cases it may be most appropriate to apportion the costs of meeting those needs to those who directly benefit from the special or elevated services that the area receives. This policy is echoed within the Borough's Code provision related to the Service Area, which excuses property owners whose parcels do not abut the Borough's roadways from taxation and special assessments.7° could potentially ask the State Legislature for a grant to pay for needed road improvements within a service district). 25 See, e.g., FNSBC 14.01.180 (providing for loans to road service areas from the borough's road service revolving fund). 26 See Fairbanks North Star Borough v. College Utilities Corporation, 689 P.2d 460 27 Id., at 463. 28 Id. 29 Id. 3° KIBC 4.90.015. Page 32 of 33 Bay View Road Service Area Road Guard Rail Funding From the ... AGENDA ITEM #2.c. LEVESQUE LAW GROUP, LLC Bud Cassidy, Borough Manager September 9, 2014 Page 17 Conclusion It is impossible, without an in-depth analysis of facts not currently available, to determine whether the absence of a guardrail at the intersection of Monashka Circle and Bay View Road may the potential for creating an issue of liability for the Borough. In large part, that determination with respect to municipalities is, based on the determination of whether an action represented some discretionary decision or was instead operational in nature. Consequently, the Borough's interest in approaching potential liabilities with an abundance of caution supports the conclusion that it should consider taking action to ensure that the Service Area is able to identify a solution for funding the installation of a guardrail, should such installation be necessary to meet industry standards. . While it is clear that the Borough should take steps to assist the Service Area with neutralizing any risk of liability posed by the condition of the intersection, Alaska law prohibits the Borough from itself funding improvements to the Service Area using the Borough's general funds. Even though the Borough has no obligation to finance the improvements to the Service Area that it desires, it may assist with the identification of an alternate funding source, such as State grants. However, in the absence of any other funding source, the improvements must likely be financed by Service Area money raised through the levy of taxes or special assessments against the properties that lie within the Service Area. I am available to discuss this matter with you at any time. Please do not hesitate to contact me. CC: Nova Javier, Clerk Kodiak Island Borough Page 33 of 33 Bay View Road Service Area Road Guard Rail Funding From the ... 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