Articles Posted in Zoning, Planning & Land Use

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An undeveloped greenbelt buffer runs between Bill Yankee’s property and the back of Chris and Ann Gilbertos’. The two properties are in different subdivisions and therefore subject to different covenants: Yankee’s property is in the Nunatak Terrace Subdivision whereas the Gilbertos’ is in the Montana Creek Subdivision. Yankee complained about the fence to the Director of Juneau’s Community Development Department, but the Director responded that the fence was allowed, citing longstanding policy. Yankee then appealed to the Planning Commission, which affirmed the Director’s decision. Yankee next appealed to the Juneau Assembly, which rejected his appeal for lack of standing. Yankee appealed this decision to the superior court, which affirmed the Assembly’s reliance on standing as grounds to reject the appeal. Yankee then appealed to the Alaska Supreme Court, which concluded the Director’s decision was an appropriate exercise of his enforcement discretion, not ordinarily subject to judicial review. On that alternative ground the Supreme Court affirmed the superior court’s dismissal of the appeal. View "Yankee v. City & Borough of Juneau" on Justia Law

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Property owners granted a utility easement to the City of Wasilla in exchange for the City’s promise to build an access road across their property, subject to obtaining permits and funding. The access road was not built, and the property owners sued the City, claiming that it fraudulently induced them to sign the easement agreement, breached the agreement, and breached the covenant of good faith and fair dealing. After trial the superior court made findings of fact and conclusions of law about the parties’ negotiations, their reasonable expectations, the key provisions in the easement agreement, and the City’s efforts to satisfy the agreement’s conditions, and it ruled against the property owners on all their claims. The property owners appealed and the City cross-appealed, contending that the property owners’ claims should have been dismissed on statute of limitations grounds. After review, the Supreme Court found no reversible error with the superior court's findings of fact or final judgment. View "Laybourn v. City of Wasilla" on Justia Law

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In April 2011 the City of Petersburg petitioned the State of Alaska's Local Boundary Commission to dissolve the City and incorporate a new borough. In August the Boundary Commission accepted the petition and published notice. In October the City and Borough of Juneau notified the Boundary Commission "of its intent to file an annexation petition that will pertain to some of the same boundaries as are at issue in the petition recently filed by the City of Petersburg." Juneau intended to annex almost half of the area sought for the Petersburg Borough. Juneau requested that the Boundary Commission postpone the Petersburg proceedings to allow for concurrent consideration of the two petitions. Boundary Commission staff recommended denying Juneau’s consolidation request, explaining that the Boundary Commission would have Juneau’s annexation petition, Juneau’s responsive brief in the Petersburg proceedings, and Juneau’s comments, and that during the final hearing the Boundary Commission could amend the Petersburg petition. The Boundary Commission ultimately denied Juneau’s request for consolidation or postponement, with one commissioner noting that "Juneau . . . will have opportunities to comment and [provide] testimony at the hearing." The primary issue this case presented for the Supreme Court's review was whether the Boundary Commission violated the Alaska Constitution when it approved the incorporation of the new borough over the objection of the existing borough. After review, the Court concluded that the Boundary Commission’s decision complied with constitutional requirements and therefore affirmed the superior court’s decision upholding the Boundary Commission’s incorporation decision. View "City & Borough of Juneau v. Alaska Local Boundary Comm'n" on Justia Law

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A nonprofit organization constructed a granite memorial on the Juneau waterfront and each spring conducted a ceremonial blessing of the fleet as the fishing boats passed by. The City and Borough of Juneau decided to build a large dock on the same stretch of waterfront. The City asked the State of Alaska to transfer the State-owned submerged lands necessary to complete the project, and the organization filed suit to enjoin construction of the dock before the land was transferred. The superior court denied the organization’s motions for injunctive and declaratory relief, denied motions to amend and for a continuance to conduct discovery, and granted the City’s motion to dismiss the organization’s claims. Upon review, the Supreme Court concluded that the superior court was correct in ruling that the organization failed to allege an actual controversy and that the organization’s proposed amendment to its complaint was futile. View "Alaska Commercial Fishermen's Memorial in Juneau v. City & Borough Juneau" on Justia Law

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Clifford Tagaban argued that the City of Pelican's foreclosed upon several parcels of land against which he had a judicial lien without giving him proper notice. In 1998 Tagaban was awarded a judgment against the Kake Tribal Corporation, and the next year he recorded this judgment as a ten-year lien against parcels of property the Corporation owned. Tagaban requested and received lien extensions from the superior court in 2008 and 2009, though he did not record the second lien extension until 2012. The City foreclosed upon the parcels in August 2010. Although the City’s counsel notified Tagaban’s counsel of the foreclosure via email in 2010, eleven months before the redemption period ended, Tagaban filed suit to challenge the City’s lack of formal foreclosure and redemption notice to him as well as the constitutionality of Alaska’s foreclosure and redemption notice statutes. The superior court granted summary judgment to the City on all issues and awarded the City attorney’s fees. The Supreme Court affirmed. Because AS 29.45.330 only required foreclosure notice to property owners, and this statute met constitutional due process requirements, Tagaban as a lienholder and not a property owner, was not due foreclosure notice by the City. And because Tagaban did not record the second lien extension until after the redemption period ended, the Supreme Court affirmed the superior court’s conclusion that the City was not required to issue redemption notice to him under AS 29.45.440 because he was not a lienholder of record when notice of the expiration of the redemption period was due. The Court also affirmed the superior court’s award of Rule 68 attorney’s fees but vacated its award under Rule 82. View "Tagaban v. City of Pelican" on Justia Law

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Lake and Peninsula Borough voters passed an initiative prohibiting large-scale mining activities that had a "significant adverse impact" on anadromous waters within the Borough. Pebble Limited Partnership and Alaska (first in separate suits, later consolidated) brought suit against the Borough claiming that the initiative was preempted by state law. Two of the initiative sponsors intervened to support the initiative. The superior court granted summary judgment in favor of Pebble and the State and enjoined the Borough from enforcing the initiative. The sponsors appealed, arguing that the dispute was unripe and that the superior court's preemption analysis was erroneous. But because at least the State has articulated a concrete harm stemming from the initiative's mere enactment, the Supreme Court found the case ripe for adjudication. And because the initiative purported to give the Borough veto power over mining projects on state lands within its borders, it seriously impeded the implementation of the Alaska Land Act, which granted the Department of Natural Resources "charge of all matters affecting exploration, development, and mining" of state resources. The Supreme Court affirmed the decision in favor of Pebble and the State. View "Jacko v. Alaska" on Justia Law

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Clifton Tweedy leased property from the Matanuska-Susitna Borough since May 1988. The property included a house that was built in 1968 and located less than 18 feet from the lakeshore. When Tweedy assumed the lease, the existing structure was exempt from the Borough’s 75-foot shoreline setback ordinance because it was constructed before any setback requirement existed. Shortly after he took possession of the property, Tweedy added a stairwell on the exterior of the house. In 2010 Tweedy applied with the Borough to purchase the property. Because structures on the property were located less than 75 feet from the shoreline, the sale required an exemption from the Borough’s setback requirement. The Borough Planning Director determined that Tweedy’s addition was unlawful and that the application could not be processed until Tweedy removed it. The Matanuska-Susitna Borough Board of Adjustment Appeals affirmed the Planning Director’s decision. Tweedy appealed to the superior court, which also affirmed. Finding no reversible error, the Supreme Court also affirmed. View "Tweedy v. Matanuska-Susitna Borough Board of Adjustment and Appeals" on Justia Law

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Clifton Tweedy began leasing property from the Matanuska-Susitna Borough on Big Lake in May 1988. When Tweedy assumed the lease, the existing structure was exempt from the Borough’s 75-foot shoreline setback ordinance because it was constructed before any setback requirement existed. Shortly after he took possession of the property, Tweedy constructed a stairwell addition on the exterior of the house. In 2010 Tweedy applied with the Borough to purchase the property. Because structures on the property were located less than 75 feet from the shoreline, the sale required an exemption or variance from the Borough’s setback requirement. The Borough Planning Director determined that Tweedy’s addition was unlawful and that the application could not be processed until Tweedy removed it. The Matanuska-Susitna Borough Board of Adjustment Appeals affirmed the Planning Director’s decision. Tweedy appealed to the superior court, which also affirmed. Because the 75-foot setback applied to Tweedy’s property when he constructed the addition, the addition was unlawful when it was built and he was not entitled to an exemption or variance. Finding no reversible error, the Supreme Court affirmed. View "Tweedy v. Matanuska-Susitna Borough Board of Adjustment and Appeals" on Justia Law

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The Anchorage Assembly passed an ordinance modifying the labor relations chapter of the Anchorage Municipal Code. Two citizen-sponsors filed an application for a referendum that would repeal the ordinance. The Municipality rejected the application, reasoning that the proposed referendum addressed administrative matters that were not proper subjects for direct citizen legislation. The sponsors filed suit in superior court and prevailed on summary judgment. The Municipality appealed, arguing that the referendum was barred because: (1) state and municipal law grants exclusive authority over labor relations to the Assembly; (2) the referendum made an appropriation; and (3) its subject was administrative, not legislative. Following oral argument, the Supreme Court issued an order on January 10, 2014, affirming the superior court's grant of summary judgment to the sponsors. This opinion explained the Court's reasoning. View "Municipality of Anchorage v. Holleman" on Justia Law

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The Nancy Lake State Recreation Area's ("the Park") governing regulations prohibit the use of motorized vehicles off of the Park's paved roads. However, the Park issues special use permits to owners of private property abutting the remote boundary of the Park that grant them the right to use all-terrain vehicles (ATVs) along the Butterfly Lake Trail to access their private property. The ATVs have damaged the Butterfly Lake Trail and the surrounding wetlands. SOP, Inc. sued to enjoin the Park from issuing these ATV permits. SOP moved for summary judgment, and the Park filed a cross-motion for summary judgment. The trial court denied SOP?s motion and granted the Park's motion, concluding "there [was] nothing in the statutes or regulations that justifies court intervention and invalidation of the permits." SOP appealed. Upon review, the Supreme Court held that the permits created easements because the Park could not revoke the permits at will. The Court therefore found the permits were illegal and accordingly reversed. View "SOP, Inc. v. Alaska" on Justia Law