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HomeMy WebLinkAbout2007-02-21 Council Packet - Work Session CITY COUNCIL WORK SESSION 5:00 P.M. WEDNESDAY, FEBRUARY 21, 2007 "V'llaye with a Past, Gi~ with ~„~~~ 210 Fidalgo Avenue, Kenai, Alaska 99611-7794 ___~ Telephone: (907) 283-7535 /Fax: (907) 283-3014 - www.ci.kenai.ak.us ttie ci~ d f' KENAK~ SKA MEMORANDUM TO: ~,/ Mayor Porter and the Kenai City Council FROM:C(~-s Cary R. Graves, City Attorney DATE:. February 1, 2007 RE: Municipal Regulation of Boat Launches Councilor Moore requested I review the city's authority to regulate boat launches within its boundaries. In particular, the issue is the ability of the city to regulate the size and types of ' engines on boats using non-city owned boat launches. There are four Kenai River boat launches open to the public within the city limits: The Pillars (state owned); Eagle Rock (privately .owned); Kenai Landing (privately owned); and the city's boat launch. 2. The Alaska Constitution grants home rule municipalities "all legislative powers not prohibited by law or charter."~ The Alaska Constitution also pcrovides that "[a] liberal construction shall be given to the powers of local government units." Title 29 of the Alaska Statutes provides that, "[u]nless otherwise limited by law, a municipality has and may exercise all powers and functions necessarily or fairly implied in or incident to the purposes of all powers and functions conferred in this title." 3 Those sections of the Alaska Constitution and Statutes were specifically drafted to overrule the traditional limitations given to the powers of local government. Authority to regulate boat launches is derived from two sources. The first is the city's "police power." Municipal "police power" is defined as the "power to safeguard the health, comfort, and general welfare of their inhabitants by such reasonable regulations as are necessary for the ' Article X, Section l 1 of the Alaska Constitution. z Article X, Section 1 of the Alaska Constitution. AS 29.35.400 also provides that "[a] liberal construction shall be given to all powers and functions of a municipality conferred in Yhis title." 3 AS 29.35.410. See also, Stanek v. Kenai Peninsula Borough, 81 P.3d 268 (Alaska 2003). ° Simpson v. Municipality of Anchorage, 63S P.2d 1197, 1200 (Alaska 1981). purpose.s5 In general, the police power includes the authority to regulate such things as wharfs, piers and boat launches.6 It also includes the power to prevent the fouling of water in streams, lakes and rivers. The second source of authority to regulate boat launches is from the city's zoning power. The Alaska Statues grant municipal planning and zoning authority to boroughs.fr However, boroughs may by ordinance delegate land use authority to cities.9 In 1984, the Kenai Peninsula Borough delegated land use authority to the City of Kenai.10 3. While Kenai would normally have the authority to regulate boat launches under its police or zoning power, that authority may bepre-empted by state law. The Alaska Supreme Court has noted that, "To say that home rule powers are intended to be broadly applied in Alaska is not to say they are intended to be pre-eminent. The constitution's authors did not intend to create city states with mini-legislatures."t t In this context, "state pre-emption of municipal enactments occurs when a particular exercise of authority has been prohibited to municipalities."12 In Jefferson v. State, 527 P.2d 37,43 n.33 (Alaska 1974), the Alaska Supreme Court stated that if the Legislature wished to pre-empt an area of law it must specifically so state. However, in spite of the lack of a specific prohibition the court has held that municipalities are pre-empted from exercising control over education unless authorized to act under state statute because of the "pervasive state control" over it is The best description of Alaska's pre-emption doctrine is contained in Liberati v. Bristol Bay Borough, 584 P.2d 1115, 1121-1122 (Alaska 1978) where the Alaska Supreme Court held that pre-emption occurs when a state statute or regulation directly conflicts with a municipal ordinance or when "an ordinance substantially interferes with the effective functioning of a state statute or regulation or its underlying purpose." 4. One of the boat launches in the city (The Pillars) is owned and operated by the State of Alaska. The Pillars is part of the Kenai River Special Management Area (KRSMA) and part of the state park system. ~ Alaska has rejecfed the traditional rule that the state is inherently exempt from s McQuillen Mwt Corp §2433 (3`a Bd)(Footnote omitted). ° McQuillen Mun Corp §I 1.21 (3`' Ed). ~ McQuillen Mun Corp. §24.265 (3 `a Ed). a AS 29A0.010(a). 9 AS 29.40.010(b). 10 Kenai ,Peninsula Ordinance 84-SQ enacted June 5, 1984. ~ ~ ,Jefferson v. State, 527 P.2d 37, 43 (Alaska 1974) (footnote omitted). ~~ Acevedo v. North Pole, 672 P.2d 130, 132 (Alask'a 1983) (citation omitted). is Maeaulev v. Hildenbrand, 491 P.2d 120, 122 (Alaska 1971). 14 AS 41.21.500. KRSMA starts a little upstream of the Warren Ames Memorial Bridge, although the boundary is usually described for convenience purposes as the bridge. The Pillars and Eagle Rock boat launches are within KRSMA and Kenai Landing and the city's boat launch are outside of it ~- local land use rules.ts AS 35.30.020 requires "public projects"16 to "comply with local planning and zoning laws to the same extent as local landowners on construction projects. ~~ It can certainly be argued that the boat launch at The Pillars is maintained by the state and therefore local land use (i.e. boat launch) regulations would apply. An opinion of the Alaska Attorney GeneraPs Office azgues that AS 35.30.020 is inapplicable to state parkland and therefore municipal land use regulations do not apply.~$ That opinion states, "Since the Legislature has not chosen to expressly or by necessary implication to subject the State parks to local zoning regulations, local land use regulations are not applicable to state parks."19 Even if it is applicable to state parkland, the state may exempt itself from local laud use regulations for public projects. AS 3>.30.030 provides that if, "a department clearly demonstrates an overriding state interest, waiver of a local planning authority approval and compliance requirement may be granted by the governor." 5. The state extensively regulates the use of boats in KRSMA. State regulations c-0ntrol engine size, boating methods, non-motorized boating areas, personal watercraft, water skiing and boat rentals within KRSMA.20 Whether municipal boat launch restrictions would be pre-empted depends on whether they are in direct conflict with state law or whether they would substantially interfere with the effective functioning of the state boating rules?' For purposes of this memorandum I will assume the city regulations would be more restrictive than the state regulations. Municipal boat launch restrictions limiting engine size would not directly contradict state regulations because it would not directly prohibit use of boats within KSRM allowed by state law. Instead it would only restrict launching of some boats within the city that are allowed under state law to be used within KRSMA. Those boats could still operate within KSRMA provided they found a place to launch outside of the city. However, those municipal restrictions would certainly make it harder to use certain types ofboats within KRSMA that are allowed under state law. 6. While it is something upon which reasonable people may disagree, it is my opinion the courts would hold that municipal restrictions on what engine sizes and types are allowed on boat launches within the city (both within KRSMA and nearby at Kenai Landing) that are inconsistent with state regulations would substantially interfere with the functioning of the state KRSMA regulations and their underlying purpose. Therefore, I believe the courts would hold the city is 15 Native (/illage of Eklutna v. Alaska R.R. Coip., 87 P.3d 41, 49 (Alaska 2004). 16 The teen "public project means a building or other structure, public work, or other facility, highway or local service road constructed or maintained by a department..." AS 35.30.040(1)(Emphasis added). " t996 Alas. AG LEXIS 20; 1996 Op. (In£) Atty. Gen. Alas. {October 24, 1996). ~e 1980 Alas. AG LEXIS 716; 1980 Op. (Inf.) Atty, Gen. Alas. (February 28, 1980). is See id. 20 I lAAC 20.850-890. ~~ Liberati, 584 P.2d at 1121-1122. pre-empted from enacting different engine size and type restrictions on the use of boat launches within the city. Please let me know if you have any questions. ALASKA BOARD OF FISHERIES AND ALASKA BOARD OF GAME REGULATION PROPOSAL FORM PO BOX 115526, JUNEAU, ALASKA 99811-5526 BOARD OF FIS ® Fishing Area ^ Subsistence ^ Sport TIONS ® Pe~~sonal Use ^ Commercial JOINT BOARD REGULATIONS ^ Advisory Committee ^ Regional Council ^ Rural BOARD OF GAME REGULATP Game Management Unit (GMU) ^ Hunting ^ Trapping ^ Subsistence ^ Other ^ Resident ^ Nonresident Please answerall questions to the best-of your ability. All answers will be. printed in theproposaC,packets along withthe proposer's name (address and'.phone numbers will not be published). Use separate forms for each proposal 1. Alaska Administrative Gode Number 5 AAC Regulation Book Page No. 2. What is the problem you would like the Board to address? During peak powerboat use on the Kenai River, coinciding with peak salmon returns (,Tiny), several hundred gallons of gasoline enter the river on a daily basis. This quantity of fuel results in State Water Quality, standards 18 AAC 70 exceedences for aquatic life. Models, existing data and examples from other areas in the country suggest that traditionally carbureted 2-stroke motors pollute in a dramatically disproportional aanount compared to several other available options (more than 15 to 1 compared to an equal 4-stroke). A complete ban on 2-strokes would almost certainly eliminate this problem. This proposal seeks an option ~ just short of a complete ban with the hope it would be sufficient to improve water quality, bringing the river I book into compliance with state water quality regulations. 3. Whatwin happen if this problem is not solved? ~ Regulation change is required to bring the Kenai River into compliance with water quality standards during ~ the month of July. Both elements (Chinook sportfishing and personal use) of the proposal MUST be enacted for the desired result. If both are not changed, the Kenai River will remain on the section 303(d) "IMPAIRED" waterbody list as requh-ed by the Clean Water Act. 4. What solution do you prefer? In other words, if the Board adopted your solution, what would the new regulation say? ~ Tn the Kenai River, during the month of July, gasoline power motorized fishvrg for Chinook Salmon may only occur from a 4-stroke or 2-stroke Direct Fuel Injection motors. The motorized personal use fishery requires that any motor not 4-stroke or 2-stroke Direct Full Injection must be on anchor when nets are in the water. 5. Does your proposal address improving the quality of the resource harvested or producfs produced? If sq how? Yes, being listed as an impaired water under the clean water act is detrimental to the resource and the economy. This action taken as described will likely result in removing 11ie Kenai River from the 303(d) list. i 6. Solutions to difficult problems benefit some people and hurt others: A. Who is likely to benefit if your solution is adopted? All aquatic life in the river. All economic interest ni the river. B. Who is likely to suffer if your solution is adopted? Owners of powerboats that have motors that are not 4-stroke or 2-stroke Direct Fuel Injection. 7. List any other solutimis you considered and why you re,jeeted them. ~ DO NOT WRITE HERE Submitted By: Name /Signature Individual or Gronp Address ZIP Code Home Phone Work Phone Email ALASKA BOARD OF FISHERIES AND ALASKA BOARD OF GAME REGULATION PROrosAL FORM PO BOX 115526, JUNEAU, ALASKA 99811-5526 BOARD OF FISHERIES REGU ^ Fishing Area Kenai River ^ Subsistence ^ Sport ® Personal Use ^ Commercial JOINT BOARD REGULATIONS ^ Advisory Committee ^ Regional Council ^ Rural Game Management Unit (GMU) ^ FIuming ^ Trapping ^ Subsistence ^ Other ^ Resident ^ Nonresident Pleaseanswerallquestionstothebestoffyourability.ARanswerswillbeprintedintheproposalpacketsalongwiththeproposer'shame '. (address and phone numbers willnot be published). Use separateformsfor eashproposaL 77.540 UCI Personal Use ~', 1. Alaska Administrative Code Number 5 AAC Salmon Fishery Mgt Plan Regulation Book Page No. 2. Wkat is the problem you would like the Board to address? The State of Alaska water quality standazds for hydrocarbons (10 ppb) has been '.. exceeded in the lower river. Measured values have reached 20 ppb and are due to outboard motor use associated with the personal use boat ', fishery, especially two cycle engines. This proposal is intended to reduce the running of two cycle engines in this fishery. '. 3. WhaB will happen if this problem is not solmed? The Stato of Alaska is required by the Clean Water Act to reduce levels to below the State of Alaska standazd If this is not done the EPA can impose regulation to accomplish this objective. 4. What solution do you prefer? In other words, iff the Board adopted your solution, what would the new regulation say? (C) from a boat, in the area from an ADF&G regulatory mazker located neaz the Kenai city dock upstream to the downstream side of the Warren Ames Bridge; vessels must be anchored with the engine off before Sshine. Or the alternative language of vessels with two stroke outboazd engines are limited to 0 75 miles on either side of the o~blic boat launch and must be anchored with the engine off before fishine. 5. Does your proposal address improving the quality of the resource harvested or products produced? If so, how? yes, hydrocarbons in the Kenai River has already resulted in the river being classified an impaired river-category 5. This gives the public the percepflon that Kenai River salmon aze tainted and should not be consumed. It is imperative to reduce this impaired water status as fast as possible. 6. Solutions to difficult problems benefit some people and hurt others: A. Who is likely to benefit if your solution is adopted? Everyone who uses the Kenai River resources and of course the resources of the river itself. B. W ho is likely to suffer if your solution is adopted? Some personal use fishermen who drift a dip net will be required to anchor. This will make it harder to catch fish but should not eliminate the opportunity to do so. ~~~ - _~ Else u'fy a f KENA~ SKA "V'lla9e with a Past, Gc witl 210 Fidalgo Avenue, Kenai, Alaska 99611-7794 Telephone: (907) 283-7535 !Fax: (907) 283-3014 www.ci.kenai.ak.us MEM®R11N~UM TO: ,.,/ Mayor Porter and the Kenai City Council FROM:C(~ Cary R. Graves, City Attorney DATE: February 1, 2007 RE: Municipal Regulation of Boat Launches 1. Councilor Moore requested I review The city's authority to regulate boat launches within its boundaries. In particular, the issue is the ability of the city to regulate the size and types of engines on boats using non-city owned boat launches. There are four Kenai River boat launches open to the public within the city limits: The Pillars (state owned); Eagle Rock (privately owned); Kenai Landing (privately owned); and the city's boat launch. 2. The Alaska Constitution grants home rule municipalities "all legislative powers not prohibited by law or charter."~ The Alaska Constitution also provides that "[a] liberal construction shall be given to the powers of local government units." Title 29 of the Alaska Statutes provides that, "[u]nless otherwise limited by law, a municipality has and may exercise all powers and functions necessarily or fairly implied in or incident to the purposes of all powers and functions conferred in this title."s Those sections of the Alaska Constitution and Statutes were specifically drafted to overrule the traditional limitations given to the powers of local government. Authority to regulate boat launches is derived from two sources. The first is the city's "police power." Municipal "police power" is defined as the "power to safeguard the health, comfort, and general welfare of their inhabitants by such reasonable regulations as are necessary for the ~ Article X, Sectionl l of the Alaska Constitution. ~ Article X, Section 1 of the Alaska Constitution. AS 29.35.400 also provides that "[a] liberal construction shall be ~iven Yo all powers and functions of a municipality conferred in this title." AS 2935.410. See also, Stanek v. Kenai Peninsula Borough, 81 Pad 268 (Alaska 2003). a Simpson v. Municipality of Anchorage, 63S P.2d 1197, 1200 (Alaska 1981). purpose."s In general, the police power includes the authority to regulate such things as wharfs, piers and boat latmches.6 It also includes the power to prevent the fouling of water in streams, lakes and rivers. The second source of authority to regulate boat launches is from the city's zoning power. The Alaska Statues grant municipal planning and zoning authority to boroughs.s However, boroughs may by ordinance delegate land use authority to cities ~ In 1984, the Kenai Peninsula Borough delegated land use authority to the City of Kenai.10 While Kenai would normally have the authority to regulate boat Launches under its police or zoning power, that authority may bepre-empted by state law. The Alaska Supreme Court has noted that, "To say that home rule powers are intended to be broadly applied in Alaska is not to say they are intended to be pre-eminent. The constitution's authors did not intend to create city states with mini-legislatures."t t In this context, "state pre-emption of mmrieipal enactments occurs when a particular exercise of authority has been prohibited to municipalities."~~ In.7efferson v. State, 527 P2d 37,43 n33 (Alaska 1974), the Alaska Supreme Court stated that if the Legislature wished to pre-empt an area of law it must specifically so state. However, in spite of the lack of a specific prohibition the court has held that municipalities are pre-empted from exercising control over education mrless authorized to act under state statute because of the "pervasive state control" over it.ts T'he best description of Alaska's pre-emption doctrine is contained in Ziberati v. BristoC Bay Borough, 584 P.2d ll 15, 1121-1122 (Alaska 1978) where the Alaska Supreme Court held that pre-emption occurs when a state statute or regulation directly conflicts with a municipal ordinance or when "an ordinance substantially interferes with the effective functioning of a state statute or regulation or its underlying purpose." 4. One of the boat launches in the city (The Pillars) is owned and operated by the State of Alaska. The Pillars is~art of the Kenai River Special Management Area (KRSMA) and part of the state park system. t Alaska has rejected the traditional rule that the state is inherently exempt from s McQuillen Mun Corp §2433 (3`~ Fd)(Footnote omitted). e McQuillen Mun Corp §11.21 (3 `d Ed). 'McQuillen Mun Corp. §24.265 (3rd Ed). a AS 29.40A10(a). v AS 29.40.010(b). t0 Kenai Peninsula Ordinance 84-50, enacted June 5, 1984. ~ Jefferson v. State, 527 P2d 37, 43 (Alaska 1974) (footnote omitted). ~~ Acevedo v. North Pode, 6'72 P2d 130, 132 (Alaska 1983) (citation omitted). "Macauley v. Hildebrand, 491 P.2d 12Q 122 (Alaska 1971). ~° AS 4121.500. KRSMA starts a little upstream of the Warren .Sores Memorial Bridge, although the boundary is usually described for convenience purposes as the bridge. "the Pillars azid Bagle Rock boat launches are within K12SMA and Kenai Landing and the city's boat Launch are outside of it. local land use rules.l' AS 35.30.020 requires "public projects"16 to "comply with local plamling and zoning laws to the same extent as local landowners on construction projects.~~ It can certainly be argued that the boat launch at The Pillars is maintained by the state and therefore local land use (i.e. boat launch) regulations would apply. An opinion of the Alaska Attorney General's Office argues that AS 3.30.020 is inapplicable to state parkland and therefore municipal land use regulations do not apply.18 That opinion states, "Since the Legislature has not chosen to expressly or by necessary implication to subject the State parks to local zoning regulations, local ]azid use regulations are not applicable to state parks."19 Even if it is applicable to state parkland, the state may exempt itself fiom local land use regulations for public projects. AS 35.30.030 provides that if, "a department clearly demonstrates an overriding state interest, waiver of a local planning authority approval and compliance requirement may be granted by the governor." 5. The state extensively regulates the use of boats in KRSMA. State regulations control engine size, boating methods, non-motorized boating areas, personal watercraft, water skiing and boat rentals within KRSMA.20 Whether municipal boat launch restrictions would be pre-empted depends on whether they are in direct conflict with state law or whether they would substantially interfere with the effective functioning of the state boating rules.Z~ For purposes of this memorandum I will assume the city regulations would be more restrictive than the state regulations. Municipal boat launch restrictions limiting engine size would not directly contradict state regulations because it would not directly prohibit use of boats within KSRM allowed by state law. Instead it would only restrict launching of some boats within the city That are allowed under state law to be used within KRSMA. Those boats could still operate within KSRMA provided they found a place to launch outside of the city. However, those municipal restrictions would certainly make it harder to use certain types of boats within KRSMA that are allowed under state law. 6. While it is something upon which reasonable people may disagree, it is my opinion the courts would hold that municipal restrictions on what engine sizes and types are allowed on boat launches within the city (both within KRSMA and nearby at Kenai Landing) that are inconsistent with state regulations would substantially interfere with the functioning of the state KRSMA regulations and their underlying purpose. Therefore, I believe the courts would hold the city is ~s Native village ofEk/utna v. Alaska R.R. Corp., 87 P.3d 41, 49 (Alaska 2004). 16 The term "public project means a building or other structure, public work, or other facility, highway or total service road constructed or maintained by a department..." AS 35.30.040(1)(Emphasis added). 1996 Alas. AG LEXIS 20; 1996 Op. (Inf.) Atty. Gen. Alas. (October 24, 1996). is 1980 Alas. AG LEXIS 716; 1980 Op. (Inf.) Atty. Gen. Alas. (February 28, 1980). is See id. 20 I IAAC 20.850-890. '~ Liberati, 584 P.2d at 1121-1722. pre-empted from enacting different engine size and type restrictions on the use of boat launches within the city. Please let me irnow if you have any questions. ~„ PUBLIC NOTICE NENNI.ILLNSNN The Kenai City Council will meet in work sessions to be held in the Kenai City Council Chambers located at 250 Fidalgo Avenue, Kenai on Wetlnesday, February 21, 2007, beginning at 5:00 p.m. The purpose of the work session is to discuss the City's Zoning Powers related to the Kenai River. The work session is open to the public. Contact the Kenai City Clerk's office at 290 Fidalgo Avenue, Kenai, 283.7535, extension 239, with questions. Carol L. Freas, City Clerk D/251