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Opinions clashed Friday between the Alliance of Concerned Taxpayers and the Kenai Peninsula Borough, concerning the $1 million capital projects cap passed by voter initiative in 2005.

With Superior Court Judge Carl Bauman presiding, oral arguments from both sides were presented, focusing on the 60 percent voter approval required for a proposed capital improvement project exceeding $1 million.

"The statutory authority lies with the assembly," said borough Deputy Attorney Holly Montague, referring to Alaska Statute 29.35.100.

"The governing body shall establish the manner for the preparation and submission of the budget and capital program," the statute reads. "After a public hearing, the governing body may approve the budget with or without amendments, and shall appropriate the money required for the approved budget.

"The governing body may make supplemental and emergency appropriations. Payment may not be authorized or made and an obligation may not be incurred except in accordance with appropriations."

Kenneth Jacobus, representing ACT, said the people are exercising their power that the statute gives them.

Montague said by requiring a 60 percent approval from voters for projects exceeding $1 million, the assembly's sole authority to make appropriations is taken away.

"The assembly must retain authority over appropriations," she said. "You cannot have a capital project without an appropriation."

"We can't use the initiative to make or repeal appropriations," Jacobus said. He said the initiative does not repeal appropriations as the borough said it does.

"This takes away the assembly's flexibility to move forward with a project it wants to do," Montague said. She said the assembly should decide where the borough's money is spent.

Jacobus said in emergency situations, the assembly can still proceed with a project even if the people have voted 'no' on it.

"There are options if the municipality wants it badly enough," he said.

Jacobus said the people should have a say in where their money goes and what is built using it. If the assembly is allowed to submit a project to be voted on, so, too, should the residents of the borough, he said.

"It can't be a popularity contest," Montague said. "The assembly cannot function if it's arrested of that right to make decisions."

Bauman did not issue a ruling, and asked both sides if there were any pressing matters in the next couple of months, indicating that a decision could be that long in coming.

Mike Nesper can be reached at mike.nesper@peninsulaclarion.com.