MEMORANDUM
KENAI PENINSULA BOROUGH
LEGAL DEPARTMENT
144 N. Binkley Street Tel. (907) 262-8609
Soldotna, Alaska 99669 Fax (907) 262-8686
TO: Timothy Navarre, Assembly President
Members, Kenai Peninsula Borough Assembly
THRU: Dale Bagley, Mayor
CC: Gary Davis, Roads Director
FROM: Holly B. Montague, Assistant Borough Attorney
DATE: September 6, 2001
SUBJECT: Decertification procedures and proposed decertification of numerous roads
In 1998, the borough assembly adopted decertification procedures and standards. (KPB 14.06.070). The standards are sensible. However, the procedures are cumbersome and leave a large margin for error. (The standards include factors such as the road not accessing dwellings, safety, drainage, and adequate right-of-way concerns.) Currently, it can take over a year to decertify a road that meets all decertification standards. According to the road service area (RSA), there is a list of roads that meet decertification standards. This memo explains the legal concerns regarding those roads and proposes amendments to simplify the decertification process.
One of the key questions posed regarding substandard roads certified for maintenance is the borough's liability for accidents. While the borough would argue municipal immunity in such a case (AS 29.71.020), this statute has not been interpreted by the Alaska Supreme Court, and case law indicates responsibility for known hazardous conditions regardless of this statute. The borough has a number of roads certified for maintenance that do not currently receive maintenance and do not meet borough standards. The borough could be liable or induced to settle lawsuits based on its acceptance of state funds for a number of years for maintenance specifically for the road, the existence of dangerous conditions, and an occasional dropping of a blade on the road by the road service area.
Unfortunately, the above facts are probably true regarding a number of roads certified for maintenance and could result in significant borough liability. Numerous substandard roads were certified for maintenance in approximately 1982-1983 based on marginal aerial photography with the benefit of the doubt being given to road construction and reliance on "say-so" that constructed roads existed without verification by the borough of the physical existence of the roads. (Memo by Jane Gabler, Planner, 12/8/82.) The roads were supposed to be dedicated and "constructed" to qualify for maintenance. There may have been no standards for "construction" in 1982. In 1986 when road construction standards were ultimately adopted by the assembly, numerous substandard and prescriptive roads were "grandfathered" as having been previously maintained by the road service area. The borough was motivated to certify roads for maintenance because borough tax revenue did not fund maintenance. Rather, state money for each mile of road certified for maintenance was plentiful ($2,500 per mile pursuant to AS 29.60.110) which has since been substantially depleted.
The three roads decertified under the initial adoption of KPB 14.06.070 included a road platted in a river and a road consisting of a mature stand of trees. A single objection to the decertification of an unconstructed road resulted in its never coming back for decertification consideration because of the bureaucratic process involved once an objection has been lodged, regardless of whether the objection has merit. In an effort to avoid liability in future lawsuits, it is recommended that amendments simplifying the decertification process approved by the RSA board at its August 14, 2001 meeting as reflected in the enclosed memo be adopted by the assembly.