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Planning Board grants Tinayguk Cove regrading variance after attorney outlines liability and drainage requirements
Summary
The Planning Board approved a variance allowing regrading after preliminary plat approval for Tinayguk Cove, and borough counsel told the board the borough is unlikely to be held liable for future drainage claims though affected neighbors retain administrative and legal remedies.
The Matanuska-Susitna Borough Planning Board on June 18 granted a variance to permit regrading after preliminary plat approval for Tinayguk Cove, a proposed five-lot subdivision, and approved the preliminary plat contingent on staff recommendations.
Staff said the subdivision requires regrading to achieve usable septic areas and that DOT&PF favors a single access point; staff recommended approval with seven findings and 12 conditions. The petitioner sought a variance so regrading and drainage work could occur after board approval rather than before the public hearing.
Dana of Lavender Survey, representing the petitioner, told the board the project will require moving "considerable" gravel — at least 10,000 square feet per lot in many cases — and that a wetlands permit from the U.S. Army Corps of Engineers had been received. Dana said the team would submit a drainage report and address wetlands and culvert concerns identified in engineering exhibits.
Neighbors and board members raised concerns that post-approval regrading could alter drainage and potentially flood adjacent lots. Bureau attorney Nick Braopolis explained the borough’s legal position: landowners may regrade their own property without bureau permission, and the borough generally has statutory immunity for land-use permitting decisions (he cited discretionary-function and title-nine immunities). He said residents may still pursue administrative appeals (Board of Adjustments/Appeals) or litigation and that legal outcomes are uncertain, but the borough’s position would likely be that it is not liable for private landowner actions.
An online commenter, Fred Wagner, urged granting the variance, arguing that approval with conditions protects the public more than denial because denial could incentivize unregulated dirt work. After discussion and assurances that drainage reports and engineering review would be required as conditions, the board voted to approve the variance and the preliminary plat contingent on staff recommendations.
The board’s approval requires the applicant to submit the required drainage report, soils and geotechnical follow-ups, and to satisfy DOT&PF and other agency conditions prior to final recordation. The board noted the variance was being used as a procedural workaround to allow the regrading condition in light of recent legal interpretation of borough code.
