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Valleys Borough Support Committe v. Local Boundary Commission (11/12/93), 863 P 2d 232
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Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
VALLEYS BOROUGH SUPPORT )
COMMITTEE, for itself and on ) Supreme Court File No. S-5182
behalf of those certain ) Superior Court File No.
classes of persons RESIDENTS ) 4FA-90-950 Civil
OF THE PROPOSED VALLEYS )
BOROUGH and THE SIGNATORIES )
ON THE VALLEYS PETITIONS, )
) O P I N I O N
Appellants, )
)
v. ) [No. 4022 - November 12, 1993]
)
LOCAL BOUNDARY COMMISSION, )
)
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard H. Erlich, Judge.
Appearances: Marc Grober, Nenana, for
Appellants. Marjorie L. Odland, Assistant
Attorney General, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Justices.
MOORE, Chief Justice.
INTRODUCTION
Valleys Borough Support Committee (VBSC) seeks to
void the incorporation election of the new Denali Borough on the
grounds that the Local Boundary Commission (LBC) had no authority
to reject the proposed Valleys Borough petition and that LBC had
no authority to make incorporation of the Denali Borough
contingent on the passage of a revenue measure. VBSC also
appeals the attorney's fee award in favor of LBC, arguing it
should not be required to pay attorney's fees because it is a
public interest litigant. We affirm, but vacate the attorney's
fee award.
FACTS AND PROCEEDINGS
This case concerns the borough incorporation of the
Denali National Park, Cantwell, McKinley Park and Healy areas.
LBC received three petitions to organize this land into a
borough. The first, submitted on June 1, 1989 by the Matanuska-
Susitna Borough, sought to annex the area. The second, submitted
on October 25, 1989, was the Denali petition. It sought to
create a new home rule borough. The third, submitted on October
27, 1989, was the Valleys petition. It also sought to create a
new home rule borough.
The proposed Valleys and Denali borough petitions
concerned essentially the same geographic areas. However, the
Valleys petition included the "road system north past Nenana"
(i.e., the Greater Nenana area), whereas the Denali petition did
not.1
In March 1990, LBC conducted seven public hearings on
the merits of the competing petitions. In April 1990, LBC held a
decisional session. During this session, LBC determined the
"ideal" boundaries for a borough in the region, amended and
approved the Denali petition, and denied the Valleys and
Matanuska-Susitna petitions.
LBC determined that the Denali petition met the
constitutional, statutory and regulatory standards for borough
incorporation. LBC found the Denali petition superior to the
Valleys and Matanuska-Susitna petitions. Specifically, LBC
determined that
[t]he "ideal"boundaries for a borough
in the region include the area from the
northern boundary of the Matanuska-Susitna
Borough to the western boundary of the
Fairbanks North Star Borough. This area
includes the communities of Cantwell,
McKinley Village, Healy, Anderson and Nenana.
Despite this conclusion, LBC also determined that
[n]otwithstanding the "ideal"boundaries
. . . the Greater Nenana area and the Denali
region are not cohesive enough at this time
to include both territories within the same
organized borough.
In reaching this conclusion, the [LBC]
stressed that "ideal"boundaries are intended
to represent long-term goals with respect to
regional government boundaries in Alaska.
Further, it may be necessary and appropriate
to deviate from these ideal boundaries in the
short-term.
In this particular case, the exclusion
of the Greater Nenana area from the area
proposed for incorporation is found to be
warranted in the short-term on the basis of
broad judgments of political and social
policy. The preponderence of testimony in
the Denali region was in strong opposition to
the inclusion of Nenana at this time.
Opposition stemmed from differences in
social, cultural and economic considerations.
For example, the Denali and Valleys petitions
and testimony demonstrated divergent views
among the residents of the two areas
concerning means of generating local
government revenues and philosophies of
government operations.
Thus, there appears to be significant
potential that the inclusion of the Greater
Nenana area in the Denali Borough might
result in the defeat of the incorporation
proposition by the voters. Therefore, it was
determined to be in the best interests of the
State of Alaska and the residents of the
Denali region for the Greater Nenana area to
be excluded from the proposed Denali Borough.
The superior court affirmed LBC's decision. VBSC now
appeals the superior court's ruling.
III. DISCUSSION
A. LBC had authority to reject the Valleys petition.
VBSC argues LBC had no authority to reject the Valleys
petition. We disagree. Although LBC made no express finding
regarding the validity of the Valleys petition, we conclude LBC
impliedly found that the petition did not comply with the
statutory standards for borough incorporation.
The statutory standards for home rule, first class and
second class borough incorporation are
(1) the population of the area is
interrelated and integrated as to its social,
cultural, and economic activities, and is
large and stable enough to support borough
government;
(2) the boundaries of the proposed
borough conform generally to natural
geography and include all areas necessary for
full development of municipal services;
(3) the economy of the area
includes the human and financial resources
capable of providing municipal services;
evaluation of an area's economy includes land
use, property values, total economic base,
total personal income, resource and
commercial development, anticipated
functions, expenses, and income of the
proposed borough;
(4) land, water, and air
transportation facilities allow the
communication and exchange necessary for the
development of integrated borough government.
AS 29.05.031(a).
LBC impliedly found that the Valleys petition did not
meet the first statutory criterion, AS 29.05.031(a)(1), because
LBC found that the area within the proposed Valleys borough was
not "cohesive enough at this time to [be] within the same
organized borough."
We previously have observed that
[a] determination whether an area is
cohesive and prosperous enough for local self-
government involves broad judgments of
political and social policy. The standards
for incorporation set out in AS 07.10.030
were intended to be flexibly applied to a
wide range of regional conditions. This is
evident from such terms as "large enough",
"stable enough", "conform generally", "all
areas necessary and proper", "necessary or
desirable", "adequate level"and the like.[2]
The borough concept was incorporated into our
constitution in the belief that one unit of
local government could be successfully
adapted to both urban and sparsely populated
areas of Alaska, and the Local Boundary
Commission has been given a broad power to
decide in the unique circumstances presented
by each petition whether borough government
is appropriate. Necessarily, this is an
exercise of delegated legislative authority
to reach basic policy decisions.
Accordingly, acceptance of the incorporation
petition should be affirmed if we perceive in
the record a reasonable basis of support for
the Commission's reading of the standards and
its evaluation of the evidence.
Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92, 98-99
(Alaska 1974) (footnote omitted) (upholding LBC's determination
that the North Slope Borough met the standards for borough
incorporation). Applying the reasonable basis standard, we
affirm LBC's determination that the proposed Valleys Borough was
not cohesive enough for organized borough government.3
B. Attorney's Fees
Upon LBC's motion, the superior court awarded LBC
attorney's fees in the amount of $750. VBSC argues this award
was erroneous, because it is a public interest litigant. We
agree.
In Kenai Lumber Co. v. LeResche, 646 P.2d 215, 222-23
(Alaska 1982), we set forth the criteria useful in identifying
public interest litigants.
(1) Is the case designed to
effectuate strong public policies?
(2) If the plaintiff succeeds will
numerous people receive benefits from
the lawsuit?
(3) Can only a private party have
been expected to bring the suit?
(4) Would the litigant claiming
public interest status have had
sufficient economic incentive to bring
the lawsuit even if it involved only
narrow issues lacking general
importance?
Id.
These criteria have been met. Because the Valleys
petition represented a proposed form of government, it clearly
was designed to effectuate strong public policies. Hundreds of
citizens signed the Valleys petition, indicating that numerous
people would receive benefits from the lawsuit. Only a private
party would have been expected to bring this suit. No apparent
economic incentive exists to bring the lawsuit. Consequently, we
vacate the attorney's fee award.
IV. CONCLUSION
We affirm the superior court's decision to
uphold the incorporation of the Denali Borough. LBC
correctly applied the statutory standards for borough
incorporation in determining that the Denali petition was
superior to the Valleys petition.4 We vacate the attorney's
fee award, because VBSC is a public interest litigant.
AFFIRMED. The attorney's fee award is VACATED.
_______________________________
1. Moreover, the proposed governmental charters differed
significantly. The Valleys charter provided an "automatic
referendum" procedure, which would require two-thirds voter
approval on any "ordinance which purports to tax or levy,
appropriate, contract [or] circumscribe any resident's rights or
liberties." The proposed Denali charter contained no such
provision.
2. AS 07.10.030 contained the former statutory standards
for borough incorporation. It has been replaced by AS 29.05.031.
The standards set forth in AS 29.05.031 parallel those found
under the prior statute and contain similarly flexible language.
3. Given this analysis, we need not address the validity of
former Alaska Administrative Code regulations concerning
competing petitions and borough incorporations. 19 AAC 10.835;
19 AAC 10.160-10.180. These regulations have been either
rewritten or eliminated in the 1992 code revision, effective July
31, 1992.
4. VBSC also challenges LBC's authority to make the Denali
Borough incorporation contingent on voter approval of a four
percent bed tax. We need not decide this issue. Even if LBC
exceeded its authority, this would not entitle VBSC to the remedy
it seeks, i.e., voiding the Denali Borough's creation.
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