Land trust files lawsuit over alleged conservation easement violations on Kilcher family homestead

In an action the Kachemak Heritage Land Trust calls a last resort, the conservation organization filed a civil suit on April 4 in Homer District Court against Otto Kilcher, the Kilcher Homestead Trust and the Kilcher Family Trust alleging Otto Kilcher has violated a landmark conservation easement. 

In 1994, KHLT entered into an agreement with the late Yule Kilcher granting a conservation easement to the land trust for the 613-acre Kilcher family homestead off East End Road near McNeil Canyon.

The Kilcher Homestead Trust was a trust set up by Yule Kilcher before his death and the Kilcher Family Trust is that of his heirs. Those trusts are the property owners of the homestead. Otto Kilcher, one of Yule Kilcher’s eight children, is a leaseholder of the trust. 

In its complaint, KHLT alleges that the dispute dates back to a February 2013 settlement agreement in which Otto Kilcher and the trusts agreed to remove by Sept. 30, 2013, a pole barn and by Oct. 30, 2014, a high tunnel. KHLT alleges the buildings violated a 3,000-square-foot limit on outbuildings that can be on Kilcher’s lease holding.

According to the KHLT website, the conservation easement prohibits subdividing the Kilcher family homestead. It gave Yule Kilcher and Ruth Kilcher — the parents of the family — and each of their eight children residential homesites. It also established a site for an educational institution. The conservation easement allows for agriculture and ranching activities. The easement runs with the deed to the property and grants KHLT enforcement responsibility. The Kilcher homestead conservation easement was the first such easement in Alaska and the largest ever.

According to KHLT’s complaint, the 2013 agreement also said the defendants agreed not to build or move any additional structures onto Otto Kilcher’s homesite. The complaint alleges that Kilcher since then has moved a Conex trailer and a travel trailer onto his site, and that the Conex is a modern, metal structure that “violates the easement’s requirement that all outbuildings must meet a reasonable quality of rustic appearance.”

The complaint also alleges that Otto Kilcher has accumulated piles of tires, building materials, oil containers, barrels and other debris. The easement prohibits dumping or disposal of noncompostible rubbish and debris, the complaint alleged.

KHLT board president Sam Means said the land trust filed the lawsuit as a last resort.

“We’ve tried to work this out over several years in different ways. It’s not been successful,” he said.

Otto Kilcher said the disagreement stems from how the land trust defines a high tunnel. He said the land trust considers his high tunnel a building and thus part of the 3,000-square-foot limit. He said the Kenai Peninsula Borough doesn’t tax high tunnels or call them buildings.

“It’s all stemming basically from me having one of those high tunnels. They’re saying it’s a building, and I’m saying it ain’t,” Kilcher said. “They want me to take down my high tunnel.”

High tunnels are greenhouse-like structures made of transparent fabric stretched over a metal frame. As part of a U.S. Department of Agriculture program to promote community agriculture, high tunnels have been enormously popular on the lower Kenai Peninsula.

Under borough code, high tunnels are generally classified as personal property, said borough tax assessor Tom Anderson.

“Just a very simple high tunnel with a hoop structure with fabric or plastic over it, we would consider it personal property,” he said.

There is a gray area, though, Anderson said. Real property — property that can be taxed — is anything that is attached to the ground. If a high tunnel was on posts set into a poured foundation, it would be real property. Structures like yurts or wall tents are considered personal property because they can be moved, but the deck yurts are built on are considered real property. The first $100,000 in value for business personal property is tax exempt. All private personal property is tax exempt except for airplanes and boats. Motor vehicles are taxed under state law.

Catkin Kilcher Burton issued a statement on behalf of the Kilcher Homestead Trust and the Kilcher Family Trust. She is trustee of the homestead trust and co-trustee with her sister Mairiis Kilcher of the family trust.

“The Kilcher family has a proud history of stewardship and preserving its homestead and managing it in a responsible manner in accordance with the conservation easement put in place by our father, Yule Kilcher,” Kilcher Burton said. “The family has a good relationship with the Kachemak Heritage Land Trust. The Kachemak Heritage Land Trust deems some improvements on one of the 10 homesites to be in technical violation of the easement, but that is far from clear and is under review by the parties and their attorneys, and it is hoped and expected it will be resolved to everybody’s satisfaction.”

In its complaint, the land trust said it seeks a court injunction compelling Otto Kilcher to remove the pole barn, high tunnel, Conex trailer, house trailer and debris. It also seeks attorney and court costs and damages to be proven at trial and at least $100,000.

Means said he couldn’t comment further on the case.

“The land trust doesn’t think it’s appropriate to discuss some legal details publicly because it’s a lawsuit and out of respect for the Kilchers,” Means said.

Michael Armstrong can be reached at michael.armstrong@homernews.com.

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