Articles Posted in Zoning, Planning & Land Use

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The superior court affirmed a municipality’s tax valuation of a landowner’s property. The landowner argued on appeal the municipality’s valuation review board abused its discretion by excluding certain evidence of value on timeliness grounds. The landowner also argued the board applied fundamentally wrong principles of valuation by failing to consider, as definitive evidence of value, either his purchase price for the property or the price for which he sold a neighboring lot. The Alaska Supreme Court found no abuse of discretion as to either of the issues the landowner raised: the assessor explained at the hearing why he considered certain evidence of value more persuasive and more consistent with the municipality’s usual methods of appraisal, and it was well within the board’s broad discretion to accept the assessor’s explanation. Therefore, the Court affirmed the superior court’s decision upholding the board’s valuation of the property. View "Kelley v. Municipality of Anchorage, Board of Equalization" on Justia Law

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A public utility filed a condemnation action seeking the land use rights necessary to construct a natural gas storage facility in an underground formation of porous rock. The utility held some rights already by assignment from an oil and gas lessee. The superior court held that because of the oil and gas lease, the utility owned the rights to whatever producible gas remained in the underground formation and did not have to compensate the landowner for its use of the gas to help pressurize the storage facility. The court held a bench trial to determine the value of the storage space. The landowner appealed the resulting compensation award, arguing it retained ownership of the producible gas in place because the oil and gas lease authorized only production, not storage. It also argued it had the right to compensation for gas that was discovered after the date of taking. The landowner also challenged several findings related to the court’s valuation of the storage rights: that the proper basis of valuation was the storage facility’s maximum physical capacity rather than the capacity allowed by its permits; that the valuation should not have included buffer area at the same rate as area used for storage; and that an expert’s valuation methodology, which the superior court accepted, was flawed. The Alaska Supreme Court concluded the superior court did not err in ruling that the landowner’s only rights in the gas were reversionary rights that were unaffected by the utility’s non-consumptive use of the gas during the pendency of the lease. Furthermore, the Court concluded the trial court did not clearly err with regard to findings about valuation. View "Kenai Landing, Inc. v Cook Inlet Natural Gas Storage, et al." on Justia Law

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The Alaska Department of Transportation and Public Facilities (DOT or the State) condemned a strip of property along the Parks Highway. DOT filed a declaration of taking, allowing it to take title immediately, and deposited approximately $15,000 in court as estimated compensation for the taking. The landowner challenged DOT’s estimate and was eventually awarded approximately $24,000, as well as attorney’s fees and costs. Pursuant to AS 09.55.440, the superior court awarded prejudgment interest to the landowner on the difference between the amount of DOT’s initial deposit and the amount the property was ultimately determined to be worth. The landowner appealed, arguing that the prejudgment interest should have been calculated on the difference between the deposit and his entire judgment, including significant amounts for attorney’s fees and appraisal costs. The Alaska Supreme Court concluded the landowner’s argument was not supported by the statutory language, legislative history, or policy. Furthermore, the Court rejected the landowner’s arguments that the superior court applied the wrong postjudgment interest rate and abused its discretion by denying discovery of the State’s attorneys’ billing records. The trial court failed to state its reasons for excluding attorney time from its attorney's fees award, and therefore vacated that award and remanded for reconsideration only of the fees award. View "Keeton v. Alaska, Department of Transportation and Public Facilities" on Justia Law

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In 2013 and 2014 attorney Gerald Markham applied for a senior citizen tax exemption on his residential property in Kodiak, Alaska. The Borough assessor denied the applications due to Markham’s prolonged absences from Alaska. When given the opportunity to prove his absences were allowed under the applicable ordinance, Markham refused to provide corroborating documentation. He appealed the denials to the Borough Board of Equalization, which affirmed the denials. He appealed the Board’s decisions to the superior court. The superior court dismissed the 2013 appeal for failure to prosecute, denied the 2014 appeal on the merits, and awarded attorney’s fees to the Borough. Markham appealed. The Alaska Supreme Court affirmed the superior court’s 2013 dismissal and the Board’s 2014 denial on the merits, but vacated the superior court’s award of attorney’s fees and remanded for further findings. View "Markham v. Kodiak Island Borough Board of Equalization" on Justia Law

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Frank Griswold appealed a decision of the Homer, Alaska Advisory Planning Commission to the Homer Board of Adjustment. Griswold was a Homer resident who owned several lots within the Business District, one of which is approximately 3,280 feet from Terry and Jonnie Yager. The Yeagers applied for a conditional use permit to build a covered porch ten feet into a twenty-foot setback. Before the hearing, Griswold submitted two documents to the Commission, arguing that the setback exceptions required a variance rather than a conditional use permit and that provisions of the Homer City Code (HCC) allowing for setback exceptions by conditional use permits in the Business District conflicted with state law. After a public hearing the Commission approved the Yagers’ conditional use permit. Griswold appealed, arguing the Yeagers' permit would adversely affect the value of his Business District properties by increasing congestion in the area and that the permit would create a “pernicious precedent” for future setback exceptions in his neighborhood. Additionally Griswold said this would harm the use and enjoyment of his home. The Board rejected his appeal for lack of standing. Griswold appealed to the superior court, arguing that he had standing under the Homer City Code and alleging a number of due process violations. The superior court ruled that Griswold lacked standing as a matter of law and found any due process errors harmless. It also awarded the Board attorney’s fees on the appeal, reasoning that Griswold did not qualify for protection from attorney’s fees as a public interest litigant. The Alaska Supreme Court reversed, finding that under applicable Home City Code section, a property owner need only produce some evidence supporting the owner’s claim that the city’s action could potentially adversely affect the owner’s use or enjoyment of the owner’s property. "The individual bringing the claim must still prevail on the merits by showing that a legal remedy against such harm is available." The matter was remanded for further proceedings. View "Griswold v Homer Board of Adjustment, et al." on Justia Law

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Kelly Dickson and Donna DeFusco owned adjacent parcels of land near Big Lake. The property’s original 160 acres were homesteaded in 1958 by their father, Benjamin Cowart, who received a patent from the federal government in 1965. He later purchased two 40-acre tracts that bordered his acreage to the southeast. Dickson and DeFusco inherited the property upon their mother’s death in 2007. At issue in this case are two easements the superior court found to exist across Dickson and DeFusco’s property. The first involved the Historic Iditarod Trail that was first surveyed in the early 1900s. The second easement was for part of Homestead Road and was created in 1958 when a neighbor, Charles Sassara, Sr., used a D8 Caterpillar to improve access to his and other homesteads in the area. The owners appealed a decision in favor of the Alaska Department of Natural Resources (DNR), that recognized an RS 2477 right of way over their property for the Historic Iditarod Trail and a prescriptive easement for public use of a road. The owners argued the evidence did not support the court’s findings of the right of way and the easement; that the court made a number of procedural and evidentiary errors that collectively deprived them of procedural due process; and that the large attorney’s fees award in favor of the State was excessive in light of its likely deterrent effect and the State’s decision to vigorously litigate this case for its precedential effect. The Alaska Supreme Court concluded the superior court did not clearly err in its findings of fact, and affirmed its decision recognizing the RS 2477 right of way for the Historic Iditarod Trail and the prescriptive easement for the road. The Supreme Court found no abuse of discretion in the court’s procedural and evidentiary rulings. However, the Court concluded there may have been a compelling reason to vary the presumptive attorney’s fees award under Alaska Civil Rule 82(b)(3), and remanded for the superior court’s further consideration of this issue. View "Dickson v. Alaska, Dept. of Natural Resources" on Justia Law

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Frank Griswold twice appealed the Homer Advisory Planning Commission’s approval of a conditional use permit to the Homer Board of Adjustment and later appealed the Board’s second decision to the superior court, which sua sponte dismissed his appeal for lack of standing. Because Griswold did not have notice that his standing was at issue, his due process rights were violated. The Alaska Supreme Court therefore reversed and remanded for the superior court to decide his appeal on the merits. View "Griswold v. Homer Board of Adjustment" on Justia Law

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Homeowners Brooke and Patrick Corkery appealed the denial of their application of a variance by the Anchorage Zoning Board of Examiners and Appeals. The homeowners’ house exceeded the 30% lot coverage limit for their zoning district by over 10% due to a renovation performed in 1983 by a prior owner. The Board denied the variance application because it concluded that three of the seven standards required to grant a variance had not been satisfied. On appeal, the homeowners challenged the Board’s interpretation of the variance standards. They also argued the equitable doctrine of laches barred the Board from denying their variance request. Furthermore, the homeowners argued the Board’s consideration of a memo written by a Municipality attorney violated their due process rights and that this violation warranted a trial de novo at superior court. After independently interpreting the variance standards, the Alaska Supreme Court agreed with the Board’s interpretation. In light of the Court's de novo interpretation of these variance standards, any error in the memo’s legal advice or in the process of the Board’s consideration was deemed harmless and did not warrant trial de novo. The Court also concluded the homeowners could not invoke the defense of laches because, in the zoning context, this defense was available only to defendants in a zoning enforcement action. View "Corkery v. Municipality of Anchorage" on Justia Law

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Property Owners appealed special assessments that the Anchorage Municipal Assembly levied on their lots to pay for recently constructed road, water, and sewer improvement projects benefiting the lots. The Property Owners claimed the special assessments improperly included nearly $1 million in costs from another municipal utility project unrelated to the improvements built for the benefit of their lots. They also claimed the special assessments exceeded limits set by ordinance and that the assessed costs were disproportionate to the benefits provided by the improvements, violating municipal ordinance, charter, and state law. After review, the Alaska Supreme Court concluded the Assembly’s allocation of costs among these projects was supported by substantial evidence and that the ordinance limit the Property Owners relied on did not apply to these assessments. Furthermore, the Court concluded the Property Owners did not rebut the presumption of correctness that attached to the Assembly’s proportionality decisions. Therefore, the Court affirmed the superior court’s decision affirming the Assembly’s special assessment determinations. View "Fink v. Municipality of Anchorage" on Justia Law

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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