Land use along Kenai River draws concern

Efforts by some riverfront property owners to skirt the anadromous stream setback rules along the Kenai River are drawing concern.

The 50-foot setback requirement, established to protect salmon habitat along the streams and rivers in the borough, can get in the way of property owners who want to build close to the riverbank. There are exceptions — boat docks are acceptable, as is any structure that is “water-dependent” — but some property owners are getting creative with subdividing property.

The more creative plats have drawn concern from the Division of Parks and Outdoor Recreation as well as the Kenai River Special Management Area board. Just floating the river, one can see many setback violations, which Parks and Outdoor Recreation is trying to address.

Parks and Outdoor Recreation Superintendent Jack Blackwell, who oversees the Kenai Peninsula area, said the division prefers to work with the property owners to resolve violations rather than just issue fines.

“Sometimes, it can take up to a year to resolve a violation,” Blackwell said in an October Kenai River Special Management Area Board meeting.

However, property owners are submitting plats that clearly violate the setback in some places. The board examined a plat submitted to the Kenai Peninsula Borough platting commission in 2012 that contains 36 individual parcels, each 20 feet wide, which was designated for mooring sites.

The plat technically complied with the setback law, as people would mostly be using the parcels for boat mooring, but it skirts the spirit of the law — limiting damage to the river habitat. The platting committee ultimately rejected the subdivision, but members of the Kenai River Special Management Area board are concerned that property owners have figured out a loophole.

Pam Russell, a natural resource specialist for the Division of Parks and Outdoor Recreation in Soldotna, said this is attractive to property owners who want to subdivide because river access would raise the value of those parcels. Buyers could also apply for a variance or conditional use permit to build some structure in that space inside the 50-foot setback. She suggested that the board approach the borough’s Planning Commission to address the problem.

“I’m not saying they’ll do it, but I’m saying they could apply for a variance or a conditional use to build in that area,” Russell said.

Ted Wellman, the chairman of the Kenai River Special Management Area Board, said the Planning Commission should not even consider plats that are clearly trying to skirt the law. Some property owners might go with a “community-owned land” terminology to get around the building restrictions as well, which is a clear evasion of the spirit of the habitat protection law.

“This is an obscenity that they would even consider this,” Wellman said. “It’s just a way to beat the obvious.”

The board will ask the Planning Commission not to grant variance permits to situations that violate the 50-foot habitat protection zone, Wellman said. Board member Brent Johnson, who communicates between the board and the borough assembly, said he would also take the concerns to borough Planning Director Max Best.

Rick Koch, a board member and Kenai’s city manager, said the problem happens elsewhere as well. He referenced Kenai Landing, which he said Kenai has had problems with in the past. All the buildings are constructed within the 50-foot setback barrier and are all within the same lot, which makes the permitting more complicated.

The buildings violate several codes, including space between buildings, and the city of Kenai believes it is legally a subdivision, Koch said. The borough’s Planning Commission chose to permit it anyway, though, he said.

“The borough needs to do something, because the guys have figured them out,” Koch said. “There’s a way to do something that circumvents the borough’s planning authority, and it’s not good.”

Reach Elizabeth Earl at elizabeth.earl@peninsulaclarion.com.

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