Incorporate Nikiski may amend, withdraw petition

Editor’s note: This story has been changed to show that the Local Boundary Commission did not decide on Incorporate Nikiski’s contention that their petition was unfairly processed. 

Proponents of incorporating Nikiski as a home-rule city may once again be collecting signatures for an altered version of their proposal.

The Local Boundary Commission, the state agency that will decide on incorporation, denied them an alternative that would have allowed changes to the incorporation petition without the endorsement of its original signers.

Incorporate Nikiski, the group of residents organizing the effort, are deciding their next steps after the five governor-appointed commissioners unanimously decided on Aug. 31 that Incorporate Nikiski can’t restart the petition process with a fresh review of a possibly amended petition. Incorporate Nikiski argued that commission staff had unfairly processed their incorporation petition by issuing an unfavorable report without first helping the petitioners correct the issues they found. Now the group is “primarily trying to find out what our options are,” said co-vice chair Paul Huber.

Stacy Oliva, Incorporate Nikiski’s other co-vice chair, wrote in an Aug. 10 letter that the commission’s preliminary report — in which Local Boundary Commission staff wrote that Incorporate Nikiski’s July 2016 petition detailing the proposed city of Nikiski’s borders, tax structure, services and governance fails state requirements to incorporate — violated statutes related to the petition’s technical review. The technical review is a precursor to the preliminary report that checks the petition’s number of signatures, sufficiency of information and other requirements, and sends the petition back to the petitioners if these are lacking.

Oliva argued that commission staff should have sent back the petition that they later deemed insufficient. On this basis, she requested “that the Local Boundary Commission suspend the City of Nikiski incorporation process and return the Petition back to the pre-technical review phase,” beginning a new evaluation that would allow Incorporate Nikiski to send a new petition.

The five commissioners voted unanimously not to do so.

“I philosophically think Nikiski should be a city,” Local Boundary Commissioner John Harrington said. “They’re a community, they need to be dealt with as a community. I think everybody who has the wherewithal and the desire to have a city should be able to move along in that direction. But at this point, (there are) a lot of questions.”

Assistant Attorney General Mary Lynn Macsalka represented the Alaska Department of Law at the meeting. She said granting the request was not a legal option for the commission because it could potentially let the petitioners change the petition without the consent of the people who’d signed it.

“I think you do need to consider the fact that in order to file that petition in the first place, that voter signatures were required,” Macsalka told the commissioners. “And to bring the petition back to that point, the only way there could be a different result is if there were to be a different petition. If the petitioner wishes to submit a different petition, that would need to come under the amendment regulation.”

Incorporate Nikiski petitioned for a city with a population of about 5,985 and an area of approximately 5,480 square miles, including land on the west side of Cook Inlet containing oil and gas infrastructure and the village of Tyonek. The petition required signatures from 15 percent of registered voters in the proposed city at the last general election, or 268. It was submitted with 336.

“At that point we believed that because department staff had accepted our petition, our petition was in substantial compliance with incorporation statutes and regulations,” Oliva told the Local Boundary Commission on Aug. 31. “… If our petition was not in substantial compliance with incorporation statutes and regulations, it should not have been accepted at that point.”

In their May 2017 report, Local Boundary Commission staff suggested changes.

“(Local boundary commission staff) envisions that a petition to incorporate a city that proposed providing a higher level of services than currently offered by the borough, with boundaries that match what can reasonably be construed as a community Nikiski — the populated area on the east side of Cook Inlet along the Kenai Spur Highway — could be received more favorably,” the preliminary report states. “However, as it stands, the petition does not meet enough of the standards.”

Oliva wrote in her letter that the review “could not have been more surprising, because we crafted most of our proposal to conform to the specific responses of LBC staff to our requests for clarification about what standards we should apply.” She wrote that Incorporate Nikiki members had talked previously talked with Local Boundary Commission staff about aspects of the petition criticized in the technical review.

“Most notably, when we sought guidance on the size of our city, we were advised to follow the service area boundaries, when we sought clarification on the way in which we should present our perspective on new services such as Public Safety, we received guidance to follow other petition examples like Big Lake, and when we sought to understand and represent our community it was suggested to let historical relationships be our guide.”

The proposed 5,480 square-mile area of the city of Nikiski is identical to that of the Nikiski Fire and Emergency Service Area, currently administered by the Kenai Peninsula Borough. According to the commission’s technical review, the city would contain 95 percent of its population in 1.5 percent of its area and would contain the presently existing unincorporated village of Tyonek, on the west side of Cook Inlet. Tyonek and the office of Borough Mayor Mike Navarre both submitted objections to Incorporate Nikiski’s request to reset the process.

Tyonek’s objection, filed by attorney Holly Wells on behalf of both Tyonek village and Tyonek Native Corporation, described the village’s inclusion in the proposed Nikiski city boundaries as “inexplicable.” Wells wrote that granting it would “stifle public involvement in the incorporation process” by allowing modifications to the petition without the consent of its signers.

Present options

Oliva wrote that “by moving back into the pre-technical review phase, we will have many options not now available and the ability to modify our Petition without additional requirements being placed upon it; thus, improving the chance of success.” With that possibility closed, Incorporate Nikiski’s options are similar to those they had at the beginning of the process.

To change their petition, the new version will once again require signatures from 15 percent of registered voters and a majority of them must be from people who also signed the original. According to the Alaska Division of Elections, Nikiski had 1,908 registered voters in the 2016 election, creating a requirement of 286 signatures, 20 more than the previous requirement based on the 2015 election.

Huber called the ammendment process “somewhat nebulous.”

“Are signatures required automatically? What happens to your timeframe? There’s just all kinds of questions,” he said.

Incorporate Nikiski may request a public information meeting from the Local Boundary Commission to make the process clearer, he said.

Alternately, Incorporate Nikiski could withdraw the petition, requiring signatures from 30 percent of the registered voters in the 2016 election, and again a majority from the petition’s original signers.

Oliva wrote that if the commission denies Incorporate Nikiski’s petition in a final report “the consequence is to wait three years before re-applying or the costly option of challenging the decision in court.”

Before denying the request to restart the petition review, the Local Boundary Commission accepted Incorporate Nikiski’s third request to extend public comment on the preliminary report to Sept. 22. Huber said the group requested an extension because summer activity had made some Nikiski incorporation proponents too busy to comment or volunteer with Incorporate Nikiski.

According to the tentative schedule included in the preliminary report, the Local Boundary Commission had planned to write a final report after the June 12 close of the original public comment period. This would have led to a a final report in July, an August hearing and a final decision by Sept. 20.

Reach Ben Boettger at ben.boettger@peninsulaclarion.com.

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