An Anchorage-based attorney sent a letter dated June 27 on behalf of his Kalifornsky Beach Road area client threatening a lawsuit if the Kenai Peninsula Borough doesn’t take action to mitigate floodwaters.
In the letter, attorney Mario Bird of the Ross and Miner law firm, hired by David Yragui, requested the borough ditch Buoy Street or hold a meeting with his office and affected landowners to discuss potential solutions within 15 days.
Within 30 days, Bird requested the borough produce a long-term drainage plan to be reviewed by Yragui’s hydrologist, the borough hydrologist, a third-party hydrologist and a drainage engineer.
“There needs to be production and execution of a long-term drainage plan,” Bird said. “The fact that it hasn’t happened even though the borough apparently has been looking at this for quite some time, that’s a cause of concern.”
In a Thursday afternoon interview with the Clarion, Borough Mayor Mike Navarre said the borough was finalizing a response to be sent later Thursday or Friday.
He said the letter from Bird shows a lack of understanding of what the authorities and responsibilities are for second-class boroughs.
“The borough doesn’t have the authority and it would be irresponsible to do a drainage plan in the time frame that they’ve asked us to do it,” he said.
More information needs to be gathered over a long period of time to properly do a drainage plan, he said.
“That’s impossible and it’s a ridiculous request. It cannot be done,” Navarre said about the request to produce a long-term drainage plan in 30 days.
Navarre said the borough attorney advised him not to send a copy of the borough’s response to the Clarion.
Bird said based on Alaska’s constitution and borough code, the government is obligated to make a plan and take action. If that happens, he said he doesn’t see the need for his firm’s involvement.
“We’d much rather find some sort of solution that is amenable to not only our client but to the borough to the State of Alaska Department of Natural Resources,” Bird said.
Navarre said the borough has done drainage improvements to protect road infrastructure. The borough is working with a resident to acquire an easement or some of the property on the corner of Karluk Avenue to use if water can be moved along the road to pump it into Cook Inlet.
The money the borough received from the federal government is to repair damaged roads and to do some mitigation to protect infrastructure, such as installing additional culverts, Navarre said.
“It’s not just a pile of money that we can use anyway we want,” he said.
Bird said according to borough code, the local government is supposed to provide ditching and drainage for the roads.
According to an email from Bird to the Clarion, when Yragui, who lives on Eastway Road, had a section Buoy Street built about 10 years ago, he expected it to be designed in compliance with borough standards.
When Buoy Street was constructed, Bird said, his understanding is that it didn’t seem apparent that ditching was necessary. But it has become apparent in the past couple years that some sort of ditching should have been included in the design.
“It’s a question of fact as to whether or not that road ever met with the borough’s specifications and we would argue that it never did,” Bird said. “But now it’s obvious with the washouts that have happened that something needs to be done.”
Navarre said the section of Buoy Street that Yragui had built was built to borough road standards, but wasn’t designed to drain. The ditches were designed to hold water and dissipate it down, which is similar to many roads in the borough, he said.
The borough has shot the elevation of Buoy Street to see if there is a way to move water.
“The reality is … 0.02 is what the grade is from the end furthest to the east, I think to the west where it goes down to K-Beach road … which is about a tenth of what you need in terms of a grade to get water flowing.” Navarre said. “What is means, basically, is it’s a big, flat area.”
He said the borough wants to improve the ditching on Buoy Street not to drain the wetlands, but to make the ditches dissipate the water downward more efficiently.
Bird said Yragui had invested time and money to save his property and help his neighbors as well.
According to the letter, 10 years ago Yragui bought land south of K-Beach road and built a homestead, ranch, airstrip and airpark. He also divided 300 acres into a residential subdivision.
Navarre said when Yragui developed some of the property, the subdivision plat said, “This area is subject to inundation.”
“A good portion of it is clearly within wetlands and mapped wetlands,” Navarre said.
The letter states that because the borough refuses to ditch Buoy Street, Yragui is losing money on potential sales in the Kalifonsky Meadows Subdivision as well as buyers at the adjacent airpark, which are located off of Buoy Street.
Navarre said it’s not a purpose of government to drain wetlands so a developer can sell a property.
“If a developer wants to (drain water) and can get the permits to do it, that’s more their responsibility than the borough’s responsibility,” he said.
Bird did not have an estimation of monetary damages and said he didn’t want to get a point where the firm needed to attribute value to Yragui’s properties.
“We want the government to do what it said it would do in the first place,” Bird said. “And that is keep public roads accessible to the people who have property adjacent to these public roads and to maintain those roads such that people can go back and forth on them.”
Yragui did not immediately return calls for comment from the Clarion.
Kaylee Osowski can be reached at firstname.lastname@example.org.