Task force to decide railroad's zoning fate

MAT-SU -- A late-filed bill from the Alaska Railroad Corp. sought exemptions for the state-owned rail operations from community planning and zoning codes, but recent action in the House and Senate has removed that provision -- at least until next year.

The railroad has operated under language in the statute officials say exempted them from local planning and zoning requirements. Wendy Lindskoog, manager of external affairs for the railroad, said the corporation has operated under that exemption for the past 18 years. A recent Alaska Supreme Court opinion in a case between the railroad and Native Village of Eklutna, however, overturned that exemption.

In that case, the railroad corporation sought to use gravel from a quarry near "culturally significant land" adjacent to Eklutna. The village sued the railroad, stating the railroad did not have a conditional use permit to operate a gravel pit in the area, as required by Anchorage Municipal Code. In a trial court, Eklutna's preliminary injunction was denied but, on appeal, in a 3-2 decision, the court sided with Eklutna.

"Because the legislature did not clearly express its intent to exempt the railroad from local zoning laws, we reverse and remand," the March 12 opinion states.

Railroad officials sought to cure the matter through use of an emergency board rule -- a rule established by the railroad's governing board that would allow them to access the Eklutna quarry to get through the spring washout season. Two days later, Eklutna placed a stay on gravel pit operations, and prevented the railroad from accessing the quarry.

Hoping to make the legislative intent more clear, Lindskoog said railroad officials hastily drafted and submitted Senate Bill 395, which would have, among other things, made clear the statutory language exempting the railroad from local zoning ordinances. The exemption would have only applied to railroad operations on its approximately 36,000 acres along the railbelt, about half of which is used for tracks, depots and other rail operations. Third-party lessees of railroad property would not have been exempt from the regulations.

Not long after the railroad submitted the legislation, local communities on the railbelt began asking questions about the bill, calling it an apparent attack on local control. The Mat-Su Borough, at its May 4 meeting, adopted a resolution objecting to the exemption.

Bruce Carr, with the railroad, addressed the assembly and reassured them the railroad was not seeking the exemption to skirt the wishes of the communities along the railbelt.

"We value the relationship we have," Carr said. "We've worked with communities for more than 80 years."

At that assembly meeting, Kathy Wells, executive director of Friends of Mat-Su, a local planning nonprofit, asked the assembly to pass its resolution calling for a task force to develop legislation that would be acceptable to railroad officials as well as railbelt communities.

"There are seven privately-held railroads in the Lower 48 that don't have exemptions like this," Wells said. "It just sort of reminds me of the infamous House Bill 69."

Lindskoog said the railroad's timing, coming when legislators are working to undo some of the effects of House Bill 69, which allowed the commissioner of the Department of Natural Resources to override local control in matters pertaining to coal-bed methane production, was unfortunate.

"It's not like that issue," Lindskoog said. "This is something all local governments never had control of before."

Wells' comment, however, is correct. The seven privately-held railroads in the Lower 48 don't have local zoning exemptions but they, like the Alaska Railroad, fall under Interstate Commerce Commission Termination Act regulations, which allow the railroad to maintain operations outside some local zoning ordinances, such as those limiting hours of operation or noise. Lindskoog said the difference is, those railway operations are not owned by the state.

"There are certain powers given to the railroad by the state, including a very specific mission, not just to provide transportation, but to be an engine for economic development," Lindskoog said.

Lindskoog said, because the railroad has always had the exemption, it was difficult to determine how having to comply with local planning and zoning may affect its operations. One clear example, she said, is happening presently in Anchorage. Upgrades to the railroad's operations center on Ship Creek are underway, she said, and Anchorage's urban design commission requested that the railroad add trees to its design. Adding trees, Lindskoog said, would be akin to placing an air-traffic control tower in a stand of birches. Although officials from the city and the railroad are working on the details, Lindskoog said it was unclear how it would be resolved -- and she's concerned the railroad may spend part of the next year in court.

"We don't know to what extent local groups do have planning and zoning, or what the procedures are," Lindskoog said. "If a group disagrees with us, what if they sue us? It kind of leaves this vulnerable time where we have to sit through and work this out."

The assembly, Tuesday, passed the ordinance without comment. Thursday, however, Mat-Su Borough Manager John Duffy said the Senate had stripped the bill of the provision regarding local control and, instead, placed emphasis on a task force made up of state officials and representatives from communities along the railbelt. The task force will consider and make recommendations as to what extent local planning and land-use regulations apply to land owned by the Alaska Railroad Corp. Those recommendations will be forwarded to the legislature to consider next session.

While Lindskoog expressed concern over what may happen in over the course of the next year, she said railroad officials are looking forward

"Maybe this got kind of a rough start, but I think … the relationship between the railroad and municipalities is going to be strengthened and both sides, even us, will have a better understanding of the needs and goals of the other organization," Duffy said.

Contact Rindi White at rindi.white@frontiersman.com.