Current through August 30, 2024
(a) An affected person or a municipal
assembly or city council may petition the department to vacate, modify, or
relocate,
(1) in accordance with
AS
19.30.410, an R.S. 2477 right-of-way,
including a section-line easement under
AS
19.10.010 that the department manages under
AS
19.30.400 and AS 38;
(2) in accordance with
AS
38.05.127(d), an access
easement reserved under
AS
38.05.127 and
11 AAC 51.045;
(3) in accordance with
AS
40.15.300-40.15.380, a platted easement
dedicated to public use and managed by the department under AS 38;
(4) on land that the state currently owns or
formerly owned, a public easement reserved along a section line under
AS
19.10.010; or
(5) another state-owned public easement
managed by the department.
(b) A petition to the department under (a) of
this section must also be submitted to the platting authority for
consideration, including public notice and a public hearing, in accordance with
the procedures set out in
(1)AS
29.40.120-29.40.150, if the platting
authority is established under
AS
29.40.080 by a municipality described in
AS
40.15.070(a); or
(2)AS
40.15.305 and
11 AAC 53.250, as applicable, if
the platting authority is the department in accordance with
AS
40.15.070(b).
(c) If a municipal platting
authority declines to consider the petition in accordance with the procedures
set out in
AS
29.40.120-29.40.150, on the grounds that the
public easement is unplatted or is an R.S. 2477 right-of-way, the department
will give notice of the petition in a newspaper of general circulation in the
vicinity of the public easement and provide a comment period of at least 30
days. The petitioner shall reimburse the department for the costs of
notice.
(d) In addition to a
notice, comment opportunity, or hearing provided under (b) - (c) of this
section by a municipal platting authority or the department, the department
will give notice of a petition under (a) of this section and provide a comment
period of at least 30 days by publishing notice in a newspaper of statewide
circulation, posting notice on the Alaska Online Public Notice System developed
under AS
44.62.175, and notifying other parties known
or likely to be affected by the action, including the Department of
Transportation and Public Facilities and the Department of Fish and Game. The
petitioner shall reimburse the department for the costs of notice.
(e) In its administrative review and finding
under this section whether to vacate, modify, or relocate a public easement is
in the best interests of the state, the department will include
(1) consideration of any recommendation or
decision, as applicable, from the platting authority;
(2) a comparison of the public easement
sought to be vacated, modified, or relocated with alternate access proposed in
accordance with (f), (g), or (h) of this section, as applicable, in terms of
underlying land ownership, land management policies, current public use
patterns, and practicality of use; and
(3) consideration of public and agency
comments that are material to the comparison undertaken in (2) of this
subsection.
(f) Before
any vacation, modification, or relocation of a public easement described in
(a)(2) - (a)(5) of this section, the petitioner must demonstrate to the
satisfaction of the department that equal or better access is available. Equal
or better access must be access that is
(1)
protected by an easement of record that is adequately wide for the purpose; if
the easement of record is new, the petitioner must arrange for a note in the
vacation document to be recorded under (j) of this section that identifies the
new easement as a replacement for the vacated easement; and
(2) at least equally usable, considering
length, type of terrain, and level of improvement, as the easement to be
vacated; if development or improvement is needed to make the replacement
easement at least equally usable, the petitioner must arrange for the
development or improvement to be completed before the vacation takes
effect.
(g) For purposes
of any department determination to vacate, modify, or relocate, in accordance
with AS
19.30.410(1), an R.S. 2477
right-of-way described in (a)(1) of this section,
(1) the petitioner must demonstrate to the
satisfaction of the department that a reasonably comparable, established
alternate right-of-way or means of access exists that is sufficient to satisfy
all present and reasonably foreseeable uses;
(2) a right-of-way or means of access is
reasonably comparable if it provides
(A) equal
or better access as described in (f) of this section; and
(B) access between the same destinations as
the R.S. 2477 right-of-way, for an R.S. 2477 right-of-way other than a
section-line easement;
(3) a right-of-way or means of access is
established if, before any vacation takes effect, all necessary surveying,
platting, and recording have been completed, and the alternate access is ready
for its intended use; the petitioner must arrange for a note in the vacation
document to be recorded under (j) of this section that identifies the
right-of-way or means of access that serves as a replacement for the vacated
R.S. 2477 right-of-way; and
(4) a
right-of-way or means of access is sufficient to satisfy all present and
reasonably foreseeable uses if it is suitable for future trail development,
road development, and utility installation, if the department finds that those
uses may be needed in the future, and if the department finds that the R.S.
2477 right-of-way to be vacated is suitable for those uses; for purposes of
this paragraph,
(A) if poorly drained soils
make an R.S. 2477 right-of-way suitable only for winter use, the alternate
right-of-way or means of access must also be suitable for winter use, but need
not be suitable for an all-season road;
(B) the alternate right-of-way or means of
access may be provided through more than one route, each suitable to a
particular use; and
(C) the
alternate right-of-way or means of access may be provided at a reduced width,
either along the original alignment or elsewhere, if the reduced width is
sufficient for all present and reasonably foreseeable uses.
(h) For purposes of any
department determination to vacate, modify, or relocate, in accordance with
AS
19.30.410(2), an R.S. 2477
right-of-way described in (a)(1) of this section,
(1) the department will not consider a
municipal assembly or city council to have requested the vacation unless
vacation is requested by ordinance; and
(2) the petitioner must demonstrate, to the
department's satisfaction, that a reasonable alternative means of access is
available; a reasonable alternative means of access need not qualify as equal
or better access as described in (f) of this section; the petitioner must
arrange for a note in the vacation document to be recorded under (j) of this
section that identifies the alternative means of access that serves as a
replacement for the vacated R.S. 2477 right-of-way.
(i) The department will not approve the
vacation, modification, or relocation of a section-line easement or R.S. 2477
right-of-way described in (a)(1) or (a)(4) of this section, including an R.S.
2477 right-of-way that has been identified under
11 AAC 51.045(f) (2)(B)(i) as an access easement to navigable
or public water, without the consent of the commissioner of transportation and
public facilities under AS 19.05 - 19.30.
(j) A vacation, modification, or relocation
of a public easement is not final until a
(1)
plat is recorded evidencing the vacation, modification, or relocation, if the
public easement being altered was previously identified by a recorded plat;
or
(2) document is recorded
identifying the affected lot, tract, or parcel and describing the manner in
which the affected public easement is being altered, if the easement was not
previously identified by a recorded plat; the department will not require a
plat to be prepared and recorded unless a plat is necessary to locate a new
easement that will replace the easement being altered.
(k) An owner of land affected by an unplatted
R.S. 2477 right-of-way may request the department's approval to reroute the
right-of-way elsewhere on that owner's land to an alignment that less adversely
affects the landowner's interests. The department will approve the realignment
if the realignment provides access reasonably comparable to the original, does
not affect land in other ownership, and connects to the original route where it
enters and exits the landowner's land. The realignment of an R.S. 2477
right-of-way under this subsection within a parcel of land does not constitute
a vacation under this section.
Authority:AS
19.30.410
AS 38.04.058
AS 38.04.200
AS 38.04.900
AS 38.05.020
AS 38.05.035
AS 38.05.127
AS 40.15.070
AS
40.15.305
