Easement options mulled

Growth needs could put borough, property owners at odds

December 4, 2005

DARRELL L. BREESE/Frontiersman reporter

PALMER - Rochelle Thompson and her husband found the home of their dreams in Meadow Lakes back in August and arranged for financing. The seller even agreed to an early closing because they had to move by the end of the month.

Things hit a snag when they learned that the garage protruded into a nearby borough easement and the seller didn't want to seek a vacation of rights from the Mat-Su Borough. The deal came to a screeching halt.

&#8220It was frustrating,” Thompson said. &#8220Everything looked perfect on the surface, but the garage was 3 feet too wide, and we couldn't wait for the owner to finalize the deal.”

Homes, garages, driveways, wells, septic systems and other structures in the Valley frequently intrude into easements dedicated for roads and utilities, and threaten to become a long-term headache for the borough as the population grows and the need to expand roads and utilities increases. Members of the borough assembly are addressing the issue, seeking to preserve the borough's right to road and utility easements while hoping to eliminate the problem with future construction.

Borough code currently requires that structures be set back 25 feet from the property line and 75 feet from any water frontage. Any property with a structure within those limits will either need to remove the building or ask the borough to vacate the right to the easement, something the assembly has done 19 times this year.

Adjusting the easement is the option most often selected, and the Mat-Su Borough Assembly finalizes the process by granting the vacation of the easement.

&#8220We're giving away borough land each time we do this,” assembly member Mary Kvalheim said during the Nov. 15 assembly meeting, when members unanimously approved five vacations.

That troubled Kvalheim, who would like to see the borough get something in return. This concern prompted her to propose a change to the vacation of right-of-way practices of the borough to include selling the portion of the easement to the property owner.

&#8220I don't just want to keep giving away borough property,” Kvalheim said. &#8220I think we should be charging the people asking us to vacate our right of way for the property. If the borough needed the same amount of land from a property owner, we would have to purchase it. Why can't that work the other way?”

Deputy Mayor Jim Colver, a surveyor, also expressed frustration with having to deal with so many vacation applications at assembly meetings.

&#8220We need to do something instead of carving up the right of way to correct errors caused by building within the established setbacks,” Colver said. &#8220The problem is tying up the platting department and I believe we need to develop some kind of variance procedure that would deal with infractions as the borough continues to grow.”

Colver said he does not support selling rights of way outright.

&#8220There has to be a better way to deal with this than just giving up claim to the land,” he said. &#8220If we continue, we are going to create unforeseen problems when it comes to future road and utility upgrades.”

Assembly member Bill Allen asked borough attorney Teresa Williams during the meeting if the assembly had the power to give away borough assets and property. She said the current code set forth a standard set of procedures to be followed for vacation of easements.

Code requires those asking the borough to vacate a portion of the right of way or utility easement to make an application before the platting board and then get approval from the assembly before any vacation is authorized. In order to be approved, the property involved in a vacation of public lands request must be deemed no longer necessary for present or future public use.

The delay caused by applying for a vacation with the borough platting division, waiting for a public hearing before the platting board and getting final approval from the assembly could take up to three months and result in added stress for both buyer and seller.

Murph O'Brien, director of planning for the borough, said things are going to change.

&#8220Very shortly we will bring forward an ordinance for assembly consideration that will set forth development standards for all future construction,” O'Brien said. &#8220We are working on a plan to issue a land-use acknowledgment permit for all new construction that will let people know exactly where the setback lines are. If approved, it should eliminate the majority of vacation requests currently coming before the assembly for approval.”

O'Brien indicated that problems typically arise when an individual has an as-built prepared so they can sell their home. &#8220Up until then, they aren't likely to be aware that there is a problem.”

The planning department is also considering legislation for the assembly that would establish a fee structure for property awarded through the vacation process.

Colver believes the problems could all be avoided with a little diligence.

&#8220I would advise people building or buying a new home in the borough to spend the money for a surveyor to assist them in making sure the structure is positioned properly on the lot,” Colver said. &#8220It will cost a little extra up front, but it will eliminate any potential problems in the future.”

Contact Darrell L. Breese at 352-2267 or darrell.breese@

frontiersman.com.