MAT-SU -- More questions were raised than answered Monday at an appeal hearing between the Mat-Su Borough, Valley resident Michelle Church and North Star Speedway Inc.

On the table was an appeal of a decision reached by the borough's Board of Adjustment and Appeals in November 2001 regarding an enforcement order the borough had filed against North Star. Enforcement orders were also issued several times in 1998. One violation brought forward in the enforcement orders concerned a vehicle parking area used by North Star.

In the documents submitted in 1997 by North Star requesting a determination of pre-existing legal non-conforming use, a site plan showed a spectator parking lot east of the track. According to information from the borough and testimony at Monday's hearing, the area used as a parking lot was actually located south of the track, on an adjoining parcel. Grandfather rights were issued only for the first parcel, which was later found to be encroaching into a setback area. When the matter went before the BOAA, the members concluded that the setback violation could be corrected if North Star moved the lot line between the two parcels enough to cure the setback violation -- but no additional acreage could be added. Moving the line any further than the minimum amount, the board agreed, would mean North Star would need to apply for a conditional-use permit. North Star changed the boundaries, removing the parking area to the east and extending the area to the south to meet setback requirements. But the borough issued an enforcement order against the track in July 2001, stating that the area south of the track was still being used as a parking and pit area, a use outside the allotment of the grandfather permit. The enforcement order also stated that the track was running vehicles during the week, an action the permit restricts to weekends and national holidays in the track's grandfather permit.

North Star appealed the enforcement order to the BOAA, who found that the racetrack was not operating within its grandfather permit by using the parking area to the south, but it made no ruling with respect to track usage during the week. North Star appealed the BOAA decision to Alaska Superior Court, where a hearing was held Monday.

In their filings, North Star defends the use of the south parking lot, stating that a 1998 as-built survey "clearly shows parking as occurring to the south of Lot D9, on the then Lot D10. The borough also had access to a plat map, with roughed in plans showing parking and pit areas on the south."

North Star attorneys further attest that two conditional use permits were requested by North Star in 1998, one that would approve spectator parking and racetrack pit operations to the south or amend grandfather rights to allow the use. The second would allow the track to be paved.

The permits were denied by the borough planning commission, a decision that was later upheld by the BOAA. North Star also requested reconsideration of the portion of BOAA's decision relating to vehicle testing during weekdays. The board, North Star's filings state, found nothing in the borough ordinances that allowed or restricted using the track as a testing area for vehicles.

Monday, Alaska Superior Court Judge Eric Smith said he'd read the briefs and was unsure whether it was a matter he should decide.

"I'm of many minds of whether this matter should be remanded back to the board," Smith said, addressing the first point of argument in the appeal -- that the board improperly said it did not have jurisdiction to decide the case. "My preliminary thinking ... is that the board could have evaluated whether estoppel was a defense."

To further muddy the issue, former borough planning director Sandra Garley, on Nov. 27, her last day in office before she resigned, signed a document that modified North Star's grandfather permit to allow parking and repair pits south of the race track. Smith said he was unsure what good would come of his deciding, after the parking lots are legal, whether North Star should have made them legal sooner.

"You have an enforcement action, an enforcement action resolved, and then I'm asked to rule on whether or not a problem took place?" Smith asked.

Smith heard arguments from the attorneys about whether his ruling was needed or if the matter could be more effectively dealt with by returning it to the BOAA. Pederson argued that refusing to make a judgment on whether North Star had improperly used the land could, in the future, be taken to be a concession that North Star agreed they were acting outside the law. John Aschenbrenner, the borough's acting attorney, argued that a ruling would uphold the borough's argument that North Star had been in violation of borough code when it used the land to the south as a parking area.

Although Smith said he was still not convinced, he agreed to take briefs from the attorneys about why the issue should be heard. He added that he would be making a decision on whether North Star, through its grandfather rights, is allowed to use the track during the week as a testing facility. That decision, he said, will be finished early next year.