Judge reduces fines for Butte resident

BUTTE — A series of citations issued to a Butte resident highlights the complicated nature of life in the Matanuska River flood plain.

Borough officials have issued a series of six citations to Butte resident Bruce Derstine since December 2013. Those citations have resulted in two court appearances for Derstine, and fines potentially totaling more than $1,000.

Derstine who operates a log-cabin construction business along Old Glenn Highway, says he first constructed a small berm primarily out of tree stumps and soil in 2006. The berm was designed to prevent river water from flooding back onto his property after a massive flood that year. He said he received tacit approval from the borough on that construction as recently as 2009.

At a trial Monday, Judge David Zwink reduced the first set of fines from $570 in surcharge fees and fines to $145 in fines, in part because a citation issued for violating an earlier cease-and-desist order had been set to a potential maximum of $500. Zwink instead set the fine amount at the minimum of $75.

“It’s a really limited part of a huge problem,” he said. “We’ve all known for years, and watched TV reports and read stuff in the newspaper and seen houses that the river is eating, and it’s a major issue and they’ve been trying to deal with this for a long time.”

“The only real issue we have here is: did we do something for which the permit was necessary, and did you do this after the time from the enforcement order that was put out by the borough,” Zwink added. “But it does sound like Officer Ness has been saying for a long time that you need to be getting this permit.”

Zwink appeared inclined toward leniency, in part because of testimony provided by Derstine and fellow Butte residents Dennis McMurray and Jay Thornsley, who performed construction work during the winter.

“I’m convinced you did this for good reasons,” Zwink said at one point.

Last winter, when the Mat River began to build ice dam over its banks, eventually sending river water across his Derstine’s driveway, almost to the edge of the highway. Derstine, in Arizona at the time, told Thornsley and emergency officials to take whatever steps necessary to protect his home. Firefighters eventually placed sandbags around his house to prevent freezing water from destroying his property.

During the process, borough officials issued two citations for the berm, in part because they say it was causing water to accumulate on property immediately to the north and south of Derstine’s.

Fast-forward to last week’s high-water event — though the Mat River hasn’t reached flood stage, according to the National Weather Service standards — Derstine has begun constructing another small wall and a ditch line with railroad ties designed to channel water from the river around his property to a low point in his property, effectively providing a way for the water to flow around his house, which was filled Sunday with sleeping newborn German shepherd puppies. The berm that led to the earlier citations has been completely destroyed, and Derstine has started laying in the foundation for a series of diversionary walls made from bagged and dozed gravel and old railroad ties.

He was cited four additional times and now faces an Aug. 14 court date for the new round of unpermitted construction.

Derstine says he is simply protecting his property.

“I’m not blocking the natural flow of the river,” he said. “I’m just protecting my house.”

The water that eventually lands on his property diverges from the river’s main channel several properties upstream, particularly in the winter, when ice damming re-directs the water to the lower elevations on Derstine’s and McMurray’s properties.

Part of that water was from a spring-fed creek, Ness testified Monday. Derstine denied such a creek existed, saying the channel Ness identified as a creek was instead a natural drainage for water from the Mat River.

Complicating the situation is the absence of an official flood declaration from the National Weather Service, which tracks the water level at the Old Glenn Highway bridge, and sets a flood stage as 9.5 feet. That level doesn’t reflect the reality faced by many Butte residents, Derstine said.

“We get water over our property at 7.75 feet,” he said. “Why wasn’t the flood level set at 7.75 feet?”

Borough officials say if they turned a blind eye to his new construction, federal funding could be at risk. Ness also serves as the flood plain administrator. The plain takes part in the National Flood Insurance Program, which offers reduced premiums for flood insurance policies on properties in the affected area. Program participation involves regular audits by federal officials, who will examine relatively high-profile events (Derstine’s property was featured in television coverage) to ensure that development in the flood plain isn’t adversely affecting properties eligible for the reduced rates, according to Ness.

“We might get kicked out of the program,” she said.

Ness said the tickets aren’t an example of borough officials penalizing residents for protecting their property, but rather a case of enforcing the borough’s rules.

“We’re not against people protecting their property,” she said.

She cited the “Plug the Hole” Program, which started construction on a temporary dike reinforcement last week as an example of successful cooperation.

“They came in last week, they had a plan,” she said. “We said, OK this is something that won’t affect other property. Hopefully that will keep the water at bay. You’re allowed to protect your property. You just have to have a permit prior to any development.”

In his ruling, Zwink agreed with that basic principal.

“The issue we’re looking at here is that there was this enforcement order that was given,” he said. “Whether or not it should have been given, that’s where the things that y’all are talking about really come into play. That’s where you would go and appeal to the borough. So really, the borough’s case is not about what Mr. Thornsley had done.”

“Y’all are convincing me not to buy property next to a river,” Zwink added at one point.