Following a temporary closure last month of a section line easement and associated trail in the Dorothy Drive and East Skyline Drive area, a Homer resident has filed a request for reconsideration of that closure.
Backed by 38 signers, Roberta Highland last month filed the paperwork requesting that Alaska Department of Natural Resources Commissioner Corri Feige take a second look at her closure.
DNR spokesperson Dan Sadler said that Feige received a timely request for reconsideration by Highland. The request is now with Feige, and the commissioner has until Monday, June 10 to make a decision.
“I know it’s an issue that’s gotten a lot of attention,” Sadler said. “We did receive the notice and a lot of signatures.”
Peter Caltagirone, an attorney who works as a special assistant to Feige, said Feige has several options: She can deny the request, she can fail to respond or she can accept the request. If Feige fails to respond, under state law that is considered a denial and the temporary closure is considered a final administrative order and can be appealed to Superior Court.
Feige’s temporary closure is valid for up to one year or until a final decision is made by the director of the Division of Mining, Land and Water on a petition to permanently vacate the easement. That petition also must be reviewed by the Kenai Peninsula Borough Planning Commission and the borough assembly.
If Feige accepts the request for reconsideration, she can do so without saying whether or not she agrees with the reconsideration, Caltagirone said. Feige would then review Highland’s letter and materials submitted. Under state law, she could then affirm the decision, issue a new or modified decision, or remand the issue to the director of the Division of Mining, Land and Water for further proceedings. There is no time limit to the reconsideration process.
Sadler said he could not speak on what Feige will do, only on the process of the reconsideration.
In July 2018, Dorothy Drive landowners Zac Brown (under his corporate name Spotty Merle LLC), Richard Koskovich, and Peter and Kathleen Zuyus petitioned the state to vacate about 830 feet of a section line running north-south from Plunging Way to Dorothy Drive between the Brown and Koskovich property and another 720 feet running along the western edge of the Zuyus lot. In April, DNR issued a preliminary decision approving that petition. Dorothy Drive is a dead-end street in the Gruening Vista Subdivision south of East Skyline Drive and east of Bear Canyon.
Brown is a celebrity through his fame as a country-western singer.
The temporary closure doesn’t affect a 10-foot wide Kenai Peninsula Borough pedestrian easement that runs between the Koskovich and Brown properties. That stretch of section line had already been vacated in 1996, but access was preserved with the easement.
The petitioners in the summer of 2018 had sought to vacate the lower end of Dorothy Drive, but withdrew their application with the borough.
Last month in a decision making the temporary closure, Feige wrote she closed the section line easement “in order to protect public safety, public and private property.”
“Recent vandalism reported caused by individuals or parties of individuals accessing the petitioners’ private property has caused the petitioners to request the closure of this SLE (section line easement) while the Division considers the petitioners’ request to vacate the SLE,” Feige wrote.
That allegation of vandalism was one of the points disputed by Highland in her letter. She said a record search by Alaska State Troopers in the past 18 months showed only one report of crime, a theft of no-parking signs on Dorothy Drive. A records request by the Homer News also showed only one trooper report in that time period, a Sept. 22, 2018, complaint by Brian Grobleski that two signs worth $35 were stolen. At a June 12, 2018, Kenai Peninsula Borough Road Service Area Board meeting in which the board considered a request to vacate the lower end of Dorothy Drive, Grobleski identified himself as a property manager, chef and nanny for Zac Brown and his family.
According to the trooper report, Grobleski told troopers he put the signs “at the end of the roadway where people park and use his property to ride their ATVs, horses, bikes and walk. … Individuals had been fighting to get a trail put there but have been unsuccessful because it is his private property.”
Highland wrote that the removal of the signs turned out to have been done by the borough roads director. At press time, Dil Uhlin, the current roads director, had not replied to an email from the Homer News seeking verification of Highland’s account.
Highland said she didn’t think hikers posed a public safety threat.
“We find it hard to think that hikers are going to be stalkers,” she said. “That’s a heavy-duty hike from the bottom up. It’s (stalking) more from the road.”
In her letter, Highland also wrote that a section line easement is a valid and existing right senior to a landowner’s title.
“Both landowners and the public are entitled to the benefit of their respective estate, and those rights are often in tension,” Highland wrote. “Legally, however, the underlying land is the ‘servient estate,’ and the landowner does not have the right to preclude the public access on the public easement.”
Highland also wrote that the landowners’ petition should also have been submitted to the borough platting authority, as required by state law. She said Feige should have sought the input of the borough before making the temporary closure. Highland also suggested in her letter that an alternate pedestrian easement be created to the west to provide continued legal access. Brown owns much of the property on the slope below Dorothy Drive. Highland said hikers started using the section line easement after Brown posted his property no trespassing. She said the state and borough advised trail users to work out a trail easement with Brown and other landowners.
“That seemed the most rational and friendly way to go about this,” Highland said.
Under a law introduced by former Rep. Paul Seaton and signed by former Gov. Sarah Palin, landowners can grant trail easements and be protected from liability — agreements many property owners in the Homer area have done with groups such as the Kachemak Nordic Ski Club. Highland said she reached out to Brown’s Kenai attorney, Blaine Gilman, about starting a discussion with Brown on alternate trail easements, but that she got no reply.
Gilman confirmed that he is Brown’s attorney on the section line easement vacation issue, but declined to comment on a case involving a client.