Saying that while they supported the general intent of Ordinance 2005-11, which sought, among other things, to prevent crime, shield children and protect property values in the unincorporated borough, five of eight assembly members present for Tuesday's meeting in Soldotna, voted against adoption arguing that it would have made the borough planning department a de facto police force.
Assembly member Milli Martin of Diamond Ridge, the prime sponsor of the measure said she would attempt to bring the issue of restricting sexually oriented businesses back to the assembly again in the not too distant future.
"Too much work went into this effort," she said following the vote.
Lacking police powers, the Kenai Peninsula Borough, a second-class municipality under the Alaska Constitution, sought instead to use its land-use permitting authority to prevent or at least curb the potentially negative impacts sexually oriented businesses, might have on public morals and property values.
The borough's legal and planning departments spent months drafting the measure relying on laws passed in other parts of Alaska and the United States as a basis. By the time it reached the assembly for consideration, it had become a 24-page legal tome featuring 50 whereas clauses covering five pages and a list of applicable definitions that would have required their own section in the borough code book.
Assembly members Chris Moss of Homer and Pete Sprague of Soldotna joined Martin in supporting the measure. But members Ron Long of Seward, Gary Superman of Nikiski, Grace Merkes of Sterling, and Dan Chay and Betty Glick, both of Kenai, said that while they supported its sentiments, they had serious concerns that under the rubric of zoning, the law essentially would require borough planning department compliance officials to assume the duties of police officers.
"If we are going to do zoning we ought to call it zoning," Long said.
The proposed law, he noted, relied on studies and surveys done elsewhere to draw conclusions about the borough where few, if any, sexually oriented businesses are in operation. In attempting to do away with a disfavored land use, the law actually amounted to regulating human behavior, he said.
"I appreciate the effort to try to regulate human behavior as far as we can under land-use regulation, the only tool available to us. But really what we are doing is defining in our code good people and bad people. Who's going to be the next disfavored use?" Long said. "If we are really going to go down that road, we ought to clearly define our parameters of regulating human behavior and go ahead and put it out to the ballot to adopt police powers."
Long said he did not see the demand for sexually oriented businesses nor data showing that they are coming to the peninsula. Were they to open here, he added, he did not know what the borough could do to react to crimes that might be associated with their existence other than to call the Alaska State Troopers or take some action against the permit.
Chay said language within the proposed ordinance was ambiguous and appeared to leave it up to the planning department to inspect the premises of what planners would decide were sexually oriented businesses, an "intrusive" aspect of the law.
Glick expressed worry that the planning director could be placed in the position of being a police officer if asked to follow up on a complaint that actual crimes, for example drug use and prostitution, were occurring on the premises of a permitted sexually oriented business.
"We are a second-class borough. We do not have public safety police powers," she said. Enforcement, she added, should come under the public safety category, but the law would make a police officer out of the planning director, requiring that he occasionally engage in dangerous duties for which he is not trained.
"I have a hard time with that," Glick said.
Wednesday, Moss said sexually oriented businesses represent the kind of issue ripe for preventative action even without a comprehensive land-use plan in place, like existing borough code regulating gravel pits and creating protective easements along riverbanks. By getting out ahead on the issue, a sexually oriented business might not become a big problem were one to open, he said.
As to turning planners into police officers, Moss said he does not buy that argument. It would be unlikely that a land-use compliance officer would ever enter a sexually oriented business with the intent of finding not a technical infraction but real crime. It would be more likely, Moss said, that a police investigation would uncover a crime, and that a subsequent conviction would later result in action against an owner's land-use permit.
Moss said he would support taking another look at a similar law, but predicted that would be at least six to 12 months away. He said he got no indication from assembly colleagues who voted against the law that they would be likely to change their minds in three months.
He also noted that the vote might help make borough residents aware that land-use planning is not a bad thing, and that it can be used to protect their property values.
Adopting police powers, which would require a vote of the public, currently has little or no chance, Moss said.
"We haven't reached critical mass yet in the numbers of people in the borough who want that," he said.
Efforts to reach Martin for further comment early Wednesday were unsuccessful.
Hal Spence is a reporter for the Peninsula Clarion.
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