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Lake and Peninsula Borough v. Local Boundary Commission, et al (12/2/94), 885 P 2d 1059
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NOTICE: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
LAKE AND PENINSULA BOROUGH, )
)
Petitioner, ) Supreme Court No. S-5476
v. )
) Superior Court No.
LOCAL BOUNDARY COMMISSION, STATE OF ) 3AN-89-1518 CI
ALASKA and CITY OF EKWOK, et al., )
)
Respondents. )
_____________________________________)
)
CITY OF EKWOK, CITY OF NEW STUYAHOK, )
CITY OF CLARKS POINT, KOLIGANEK ) Supreme Court No. S-5485
VILLAGE COUNCIL, KOLIGANEK NATIVES, )
LTD., STUYAHOK LTD., EKWOK NATIVES, ) Superior Court No.
LTD., CHOGGIUNG, LTD., ALEKNAGIK ) 3AN-89-1518 CI
NATIVES, LTD., MANOKOTAK NATIVES, )
LTD., and SAGUYAK, LTD., INC., )
)
Cross-Petitioners, )
v. )
) O P I N I O N
LOCAL BOUNDARY COMMISSION, et al., )
)[No. 4152 - December 2,
1994] )
Cross-Respondents. )
_____________________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Joan M. Woodward,
Judge.
Appearances: Bruce E. Falconer, Hicks,
Boyd, Chandler & Falconer, Anchorage, for
Petitioner. Don Clocksin, Sonosky, Chambers,
Sachse, Miller, Munson & Clocksin, Anchorage,
and Frederick Torrisi, Dillingham, for
Respondents and Cross-Petitioners. Marjorie
L. Odland, Assistant Attorney General, and
Bruce M. Botelho, Attorney General, Juneau,
for Respondents and Cross-Respondents.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
COMPTON, Justice.
I. FACTUAL AND PROCEDURAL BACKGROUND
This controversy concerns a portion of the Nushagak-
Mulchatna watershed in Southwest Alaska. The Lake & Peninsula
Borough (Borough), incorporated in 1989, originally encompassed a
portion of the watershed within its northwest boundary. The
"Nushagak villages"1 and other respondents/cross-petitioners
(Villages) are not located within the Borough, but rather
represent subsistence users of the watershed.
A. FACTS
The Borough was the product of a hurried incorporation
effort promoted by the Lake & Peninsula School District
(District).2 The District determined that the northwest
boundaries of the Borough should coincide with that of the Lake &
Peninsula Regional Educational Attendance Area (REAA) boundary.
The District filed a petition for incorporation of the
Borough with the Department of Community & Regional Affairs
(DCRA) on November 10, 1988. DCRA, which had been working with
the District to prepare the petition, accepted the petition
immediately.
The District then served copies of the petition
materials on "every municipality in or adjoining the territory,"
as required by 19 Alaska Administrative Code (AAC) 10.370(a). It
published notice of the filing of the petition in various
newspapers3 as required by 19 AAC 10.380(a). It also mailed to
necessary parties and published in various newspapers4 the dates
and locations of Local Boundary Commission (LBC) hearings, as
required by AS 44.47.573 and 19 AAC 10.400. Nonetheless, notice
of the petition or the related hearings was not sent to Villages.5
Public LBC hearings were scheduled for December 3 and 4
in Newhalen, Iliamna/Port Heiden and Chignik. However, because
of adverse weather the hearings were held telephonically between
the Lake & Peninsula communities, Kodiak and Anchorage. Villages
did not participate. In December LBC approved the petition, as
amended in part to exclude a portion of Borough land that LBC
simultaneously annexed to Kodiak.
The Bristol Bay Native Association (BBNA) then
submitted written comments to LBC on behalf of Villages,
objecting to the Borough's northwest boundary and seeking
reconsideration of LBC's decision. The Borough and DCRA opposed.
At a hearing, LBC denied reconsideration. However, in the wake
of complaints by Villages that they had not been permitted to
testify, LBC scheduled another hearing. After the second
hearing, LBC again denied reconsideration.
The Borough was incorporated on April 24, 1989, when
its residents voted to approve the petition. AS 29.05.110(a).
It has since begun the business of local government.
B. PROCEEDINGS
Villages filed a complaint for declaratory and
injunctive relief in the superior court in February 1989, naming
LBC (and later the Borough) as defendant. The complaint alleged
statutory and constitutional violations in setting boundaries and
in providing notice of the incorporation process. It sought a
judgment voiding LBC's incorporation decision and remanding the
matter to LBC for further proceedings.
In January 1991 the superior court gave notice of its
intent to dismiss the case pursuant to Alaska Civil Rule 16.1(g).
Simultaneously, the Borough moved for summary judgment based on
laches. Villages then moved for summary judgment based on
alleged notice deficiencies. In response, the Borough, joined by
LBC, sought dismissal based on the de facto incorporation
doctrine. LBC also asserted the impropriety of proceeding other
than by administrative appeal.
In July 1991 the superior court orally denied the
motions for summary judgment and elected to treat the matter as
an administrative appeal.6 At that time the court opined that
there were defects in the notice,7 but did not determine their
effect or the effect of the alleged de facto status of the
Borough. In a later written decision the court found that (1)
the notice violations had prejudiced Villages by abbreviating the
time they had in which to voice opposition to the Borough's
boundaries, and (2) the notice defects vitiated any "colorable"
compliance necessary to find de facto incorporation status. It
also rejected the Borough's laches defense. The attendant remedy
was determined in a series of written responses to requests for
clarification. See infra part II.C.1. The court declared the
northwest boundary to be voidable and ruled that if LBC changed
the boundary on remand, then there would have to be an election
"restricted to approval of the new boundary versus retention of
the existing boundary."
The Borough challenges the court's ruling regarding
notice and laches.8 Villages challenge the court's determination
of the proper remedy. The LBC hearing has been stayed by mutual
agreement of the parties.9
II. DISCUSSION
A. NOTICE
1. Statute and Regulations.
The following statute and former DCRA regulations are
relevant to this case.10 Alaska Statute 44.47.573 provides:
Notice of public hearings. Public
notice of a hearing of the local boundary
commission shall be given in the area in
which the hearing is to be held at least 15
days before the date of the hearing. . . .
The [DCRA] commissioner shall give notice of
the hearing at least three times in the
press, through other news media, or by
posting in a public place, whichever is most
feasible.
Former 19 AAC 10.370 (reorganized 1992) provides in part:
SERVICE. (a) The petitioner shall,
by certified mail, serve a copy of the
petition and brief, together with
accompanying exhibits, to every municipality
in or adjoining the territory. The service
shall be made at the same time that the
petition is filed with the [DCRA]
commissioner.
Former 19 AAC 10.380 (reorganized 1992) provides in part:
NOTICE OF PETITION. (a) Upon
receipt of notice from the [DCRA] that the
petition and brief have been accepted, the
petitioner shall cause notice of the filing
of the petition to be published in a
newspaper of general circulation in the
territory, or if a newspaper of general
circulation is not available, post notice in
at least three public and prominent
locations. . . .
(b) The petitioner shall furnish
the [DCRA] commissioner with proof of
compliance with (a) of this section. Upon
receipt of the proof, the commissioner shall
submit the petition and brief to the [local
boundary] commission.
Former 19 AAC 10.400 (reorganized 1992) provides:
CALL FOR HEARING. The [local
boundary] commission will establish a time
and place for a hearing regarding the
proposed incorporation which shall be held in
or near the territory proposed for
incorporation. The commission will publish
notice of the hearing at least 15 days before
the date of the hearing, at least three times
in a newspaper of general circulation in the
territory, through other news media, or by
posting in a public place, whichever is most
feasible.
2. Standard of Review.
We review both an agency's interpretation of its own
regulations11 and an agency's exercise of its discretionary
authority under the "reasonable basis" standard. Rose v.
Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska
1982); Mobil Oil Corp. v. Local Boundary Comm'n, 518 P.2d 92, 98
(Alaska 1974); Kelly v. Zamarello, 486 P.2d 906, 916-17 (Alaska
1971). Moreover, because the superior court acted as an
intermediate appellate court, we do not give deference to its
decision. National Bank of Alaska v. State, Dep't of Revenue,
642 P.2d 811, 816 (Alaska 1982).
3. Notice of the LBC Hearings Was
Defective in This Case.
Villages note that the relevant regulations mandate the
following orderly process: a petition is filed; the petitioner
must then provide public notice of the petition (filing notice);
the petitioner must then provide proof of such notice to the
Commissioner; the Commissioner then informs LBC; LBC must then
provide public notice of the incorporation hearing (hearing
notice). Villages contend that this orderly process was not
followed and, as a result, the Borough's incorporation effort was
defective.12 The superior court agreed with the Villages and
concluded that notice was defective.
The Borough argues that it complied with the
requirements of AS 44.47.573, and that the superior court's
interpretation of the regulations is incorrect; no provision
requires that the petitioner file notice of the petition prior to
LBC's hearing notice. Further, the Borough argues that the
superior court erred in concluding that former 19 AAC 10.380(b)
and 10.400 link the discrete procedures of filing notice and
hearing notice, and that there is no requirement that a petition
be "pending"before LBC prior to publication of hearing notice.13
Indeed, former 19 AAC 10.380(c) provided:
A petition filed with the commissioner
may not be considered to be pending before
the commission until the petition and brief
have been submitted to the commissioner
pursuant to this section.
Absent a link between filing notice and hearing notice, the
Borough contends that there was no "contraction"of the notice
period. Thus, the Borough concludes that LBC merely had to
publish three notices at least fifteen days before the hearing,
i.e., on or before November 18.14
We agree with the superior court and Villages that
published notice of filing the petition and proof of such must
precede published notice of the hearing.
The regulations make clear that filing notice, which
occurred on November 18, had to precede hearing notice:
(1) former 19 AAC 10.370 required the
petitioner to file the petition with the
commissioner;
(2) former 19 AAC 10.380 required that
the petitioner then publish filing notice,
and provide proof of the same to the
commissioner,15 after which the commissioner
would submit the petition to LBC;
(3) only at that point could LBC
publish hearing notice as required by 19 AAC
10.400.
In this case the Borough published filing notice as follows:16
Borough Post Nov. 18, 25
Bristol Bay Times Nov. 18, 25, Dec. 2
Thus, LBC could not properly have taken steps to notice the
hearings until after November 18.
The regulations also dictate that LBC had to publish
three hearing notices at least fifteen days before the hearing,
i.e., on or before November 18. The hearing notices were
published as follows:17
Anchorage Daily News Nov. 16, 17, 18
Borough Post18 Nov. 11, 18, 25, Dec. 2
Bristol Bay News Nov. 18, 25.
November 18 is simultaneously the earliest and latest
date for three newspaper notices of the hearings. In the words
of the superior court, this amounted to a "substantial
contraction"of the notice period, and a defect in incorporation.19
We agree with Villages and the superior court that the
notice violations were substantial.20 Accordingly, we affirm that
portion of the superior court's decision and remand to LBC for
reconsideration, following the requisite notice procedures.21
B. LACHES
We have recognized laches to be a defense to suits
challenging municipal formation. Pavlik v. State Dep't of
Community & Regional Affairs, 637 P.2d 1045 (Alaska 1981);
Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula
Borough, 527 P.2d 447, 456-58 (Alaska 1974). The defense
requires unreasonable delay by a plaintiff resulting in prejudice
to the defendant. Concerned Citizens, 527 P.2d at 457. These
concepts exist on a continuum: "where there is a long delay, a
lesser degree of prejudice will be required." Pavlik, 637 P.2d
at 1048.
The superior court rejected the laches defense.22 The
Borough contends that it erred in doing so, making the following
argument. If Villages had properly appealed LBC's boundary
decision pursuant to AS 29.05.100(b), then the case could have
been resolved prior to the incorporation election. Instead,
Villages filed an independent action, later converted to an
appeal, in February 1989. Unreasonable delay occurred as the
case "lay dormant"for eighteen months (i.e., from June 1989
until January 1991, when the superior court informed Villages of
its intent to dismiss for want of prosecution). Prejudice
resulted from the delay because in the interim, "the Borough
proceeded with the business of local government."
Villages respond that "laches is an equitable defense
inapplicable to actions at law." Gudenau v. Bang, 781 P.2d 1357,
1363 (Alaska 1989); Kodiak Electric Ass'n v. DeLaval Turbine,
Inc., 694 P.2d 150, 157 (Alaska 1984).
We agree with Villages. In Kodiak Electric, we noted
"[w]hen a party is seeking to enforce a legal right, as opposed
to invoking the discretionary equitable relief of the courts, the
applicable statute of limitations should serve as the sole line
of demarcation for the assertion of that right." 694 P.2d at
157. In this case, Villages' action was timely filed; the action
proceeded at law and the equitable defense of laches was
inapplicable.
C. REMEDIES
1. Proceedings in the Superior Court.
Following oral argument on November 13, 1992, the
superior court "took the issue of remedy under advisement." The
parties agreed that "reconsideration . . . should be limited to
the precise drawing of the Borough's northwest boundary." The
Borough and LBC opposed any action that could result in
disincorporation. They favored detachment. Villages opposed
detachment because the standards for detachment are more
stringent than those applicable to incorporation.23 The superior
court concluded that detachment was not a viable remedy:
[I]t is readily apparent that the Local
Boundary Commission could determine that
different boundaries are warranted under the
more general incorporation standards, but
that detachment would not be justified under
the narrow criteria of the applicable
regulation.
It concluded that the proper remedy was an election limited to
the placement of the northwest boundary.24
The Borough moved for reconsideration seeking, inter
alia, clarification of the meaning of "restricted" election.25
The court denied the motion, but stated that
the reconsideration process . . . starts
from the premise that the existing boundary .
. . is in place. The Commission and Borough
residents will ultimately have to decide
whether to maintain or alter the existing
boundary. It was not the court's intention
that the voters be presented with the choice
of no northwest boundary, and thus no
borough.
The Borough requested further clarification of "the nature of any
election that would be held in the event the LBC determines that
the northwest boundary should change." The court emphasized that
"any change in borough boundaries must be approved by the
electorate,"rather than LBC, but again noted that "any election
would have to be limited to approval or disapproval of a change
in the borough's northwest boundary."26
2. The Superior Court Erred in
Formulating a Remedy.
The superior court's final order regarding remedy
provides:
Should the LBC decide that the
northwest boundary of the [Borough] should
remain unchanged, no election would be
required; should the Commission decide
otherwise, an election restricted to approval
of the new boundary versus retention of the
existing boundary would be required.
Villages cross-appeal the superior court's decision.
The issue concerns only the situation in which, upon
reconsideration, LBC changes the boundary to exclude the Nushagak
watershed. Villages argue that Borough voters should be given a
choice of "changed boundary or no borough." The Borough responds
that the superior court correctly defined the election as a
choice of "changed boundary or previous boundary."
Villages argue that "boundary decisions should be made
by the Local Boundary Commission or the Legislature, not the
voters."27 See City of Douglas v. City & Borough of Juneau, 484
P.2d 1040, 1042-43 (Alaska 1971); Oesau v. City of Dillingham,
439 P.2d 180, 183-84 (Alaska 1968); Fairview Pub. Util. Dist. No.
1 v. City of Anchorage, 368 P.2d 540, 543 (Alaska), cert. denied,
371 U.S. 5 (1962). They conclude that "[t]he superior court's
decision to essentially remand this matter back to Borough voters
goes against the [Alaska C]onstitution, the statutes, and indeed
the very purpose of the LBC."28
We agree. It does not appear that a municipality can
ignore an LBC boundary decision. An election permitting voters
to choose between two boundaries essentially allows the
electorate to establish the boundary without regard to LBC's
action on reconsideration. In Fairview, this court examined the
purpose of Article X of the Alaska Constitution and determined
that "local political decisions do not usually create proper
boundaries and that boundaries should be established at the state
level."29 368 P.2d at 543; accord 1 Dallas Sands et al., Local
Government Law 8.29 (1994).
The Borough argues that detachment is the proper
remedy. Villages respond that the detachment standard differs
from the incorporation standard. The standard for incorporation
is found in AS 29.05.031(a)(2), which provides in part:
[T]he boundaries of the proposed borough
[must] conform generally to natural geography
and include all areas necessary for full
development of municipal services.
The standard for detachment applicable at the time Villages filed
suit was found in 19 AAC 10.230(a)(2) (reorganized 1992), which
provided in part:
In determining whether to approve a
detachment, the commission will consider, but
is not limited to . . . whether the
geographic location or configuration of the
territory precludes the provision of borough
services provided other areas of the borough
or makes the provision of borough services
impractical . . . .
Villages express two concerns regarding the differing
standards:
There is no mention of natural geography
in the detachment regulation nor any
provision that makes it likely that the
concerns of an unincorporated borough would
be heard. Moreover, there remains the
question of which party would carry the
burden of proof. Under the statutory
incorporation standards, the Borough
incorporators have to justify the inclusion
of all the territory which they wish [to]
incorporate. Under the detachment
regulations, previous compliance with the
incorporation standards is presumed.
We agree that detachment will not adequately remedy
Villages' concerns. In fashioning a remedy, the superior court
was guided by Alaska Community Colleges' Federation of Teachers
v. University of Alaska (ACCFT), 677 P.2d 886 (Alaska 1984), and
its direction that "approximation of the status quo at the time
of the original decision is desirable."30 Id. at 890. However,
the court recognized the difference between an "ideal"remedy and
a "practical" remedy, and cautioned that "the damage to the
public good"should not outweigh the "benefits derived"from the
remedial action. Id. at 890, 892.
We hold that under ACCFT, an election between no
borough or a borough excluding the Nushagak watershed will best
approximate the status quo. See 677 P.2d at 890. The prospect
that the Borough will not be incorporated does not constitute
"damage to the public good"outweighing the benefits of remedying
the notice violations. See id. at 891-92.
III. CONCLUSION
We AFFIRM the court's conclusion that notice was
defective and did not substantially colorably comply with the
requirements. Accordingly, we REMAND the case to LBC for
consideration of whether LBC complied with the statutes
addressing municipal boundary determination. This consideration
can be undertaken only after all statutory requirements have been
met. If LBC does not change the boundary, no new
election will be required. However, if LBC changes the boundary,
then the Borough must hold an election in which voters would have
to choose either (1) to incorporate according to the changed
boundary, or (2) not to incorporate. Thus, we REVERSE the
superior court's formulation of a remedy in this case.
AFFIRMED in part, REVERSED in part, and REMANDED for
further proceedings.31
_______________________________
1 The Nushagak villages include Ekwok, Koliganek, New
Stuyahok, Clarks Point and Aleknagik.
2 In 1987 the Aleutians East Borough had successfully
incorporated a portion of the Lake & Peninsula region. Moreover,
the Kodiak Island Borough was in the process of filing a petition
to annex another portion of the region.
3 Borough Post (November 18, 25); Bristol Bay Times
(November 18, 25, December 2); Kodiak Mirror (November 16, 18).
4 Anchorage Daily News (November 16, 17, 18); Borough
Post (November 11, 18, 25, December 2); Kodiak Mirror (November
15, 16, 17); Bristol Bay News (November 18, 25).
5 The Villages contend that no notice was published in
the Bristol Bay Times, "the most widely read newspaper in the
Nushagak region."
6 This ruling has not been appealed.
7 The court found that under 19 AAC 10.380(a) and .400,
published notice of filing the petition and proof of such must
precede published notice of the hearing. Accordingly, the court
noted that only the November 18 hearing notice in the Anchorage
Daily News both met the 15-day requirement of 19 AAC 10.400 and
followed the initial publication of filing notice on November 18.
8 LBC initially joined the Borough, but has withdrawn its
appeal.
9 The Borough filed a notice of appeal. Since no final
judgment had been entered, we dismissed the appeal sua sponte,
treated the notice as a petition for review, and granted the
petition. Appellate Rule 402.
10 19 AAC 10 was substantially reorganized in 1992. See
AAC Register 123. The provisions in this case last appear in
their entirety in AAC Register 107. The new regulations are more
explicit in their notice requirements. See 19 AAC 10.420-.640
(effective 1992).
The purpose of DCRA is "to render maximum state
assistance to government at the community and regional level."
AS 44.47.020. The Commissioner of Community and Regional Affairs
(Commissioner or DCRA Commissioner) is the principal executive
officer of DCRA. AS 44.47.010. "There [exists] in [DCRA] a
local boundary commission,"AS 44.47.565, which shall "develop
proposed standards and procedures for changing local boundary
lines; . . . consider a local government boundary change
requested of it by . . . the [DCRA commissioner]; . . . [and it
may] conduct meetings and hearings to consider local government
boundary changes . . . ." AS 44.47.567(a)(2), (3), (b)(1).
11 "An administrative agency's interpretation of its own
regulation is normally given effect unless plainly erroneous or
inconsistent with the regulation." State, Dep't of Highways v.
Green, 586 P.2d 595, 602 n.21 (Alaska 1978) (citing 1A Charles
Sands, Sutherland Statutory Construction 31.06, at 362 (4th ed.
1972)).
12 Villages also argue that notice was defective because
it failed to provide personal service of the petition to Villages
"adjoining" the Borough. See 19 AAC 10.370 (reorganized 1992).
Even though counsel for Villages conceded that no direct notice
was required under the statute, they contend they assumed that
adjoining meant "touching." They contend that the historical LBC
interpretation of the term "adjoining"is "within 25 miles of the
boundary line." The Villages of Ekwok and New Stuyahok are
within fifteen miles of the boundary line. Under current
regulations, personal service of the petition is required for
"every municipality within an area extending 20 miles beyond the
boundaries of the territory proposed for change." 19 AAC
10.460(a) (effective 1992). In view of our disposition of this
case, we do not need to address this issue.
13 The Borough argues that the superior court's decision
is erroneously premised on the fact that the Commissioner's
submission of the petition to LBC is a prerequisite to LBC's
publication of hearing notice. AS 44.47.573 does not suggest
such a link: "[t]he commissioner shall give notice of the hearing
. . . ." (Emphasis added). The implementing regulation, former
19 AAC 10.400 was slightly different: "[t]he commission will
publish notice of the hearing." (Emphasis added). The Borough
argues that the statute is controlling: "[t]o be valid a
regulation must be consistent with the authorizing statute and
reasonably necessary to carry out the statute's purpose."
Trustees for Alaska v. State, Dep't of Natural Resources, 795
P.2d 805, 812 & n.11 (Alaska 1990). We disagree. The regulation
is not inconsistent with the statute, but was enacted pursuant to
AS 44.47.980: "[t]he [DCRA] may adopt regulations . . . to carry
out the purposes of this chapter."
14 The Borough argues that only the first of its three
newspaper notices had to precede the hearing by fifteen days. We
disagree. The superior court correctly concluded that the
fifteen-day period should run from the date of the last of the
three required publications. See Moore v. State, 553 P.2d 8, 21
(Alaska 1976) (requiring full week to run between last of
required publications on "three consecutive weeks"and sale of
oil and gas lease).
15 The record does not indicate that the Borough provided
proof of such notice to the commissioner.
16 There was also publication of notice in the Kodiak
Mirror on November 16 and 18. However, the Borough admits that
"[t]his was . . . done given Kodiak's competing petition. The
Borough does not contend that the Kodiak Mirror is a paper of
general circulation within the Lake and Peninsula territory."
17 Notice was also published in the Kodiak Mirror on
November 15, 16 and 17.
18 Villages concede that the Borough Post is a newspaper
of general circulation in the Borough even though it is not
distributed in the Nushagak community.
19 The superior court reasoned that the regulations
"distinguish[] between the commissioner and the Commission . . .
. If [the petition is] not pending before the Commission, it's
hard to understand how . . . the Commission could [publish notice
of a hearing]."
20 The Borough argues that it should receive the
protection of the de facto incorporation doctrine. The Villages
argue that the de facto doctrine should not apply because: (1)
the Alaska Legislature abolished the de facto doctrine with
respect to private corporations, AS 10.06.218; and (2) even if
the doctrine has not been abolished for municipal corporations,
there was no colorable compliance with the statutory
requirements.
In Port Valdez Co., Inc. v. City of Valdez, 522 P.2d
1147 (Alaska 1974), we held that four elements must be present in
order to establish a de facto defense:
(1) a constitutional or statutory
provision under which the [incorporation]
might lawfully have been accomplished; (2) an
attempted compliance in good faith with the
provision(s); (3) a colorable compliance with
the provisions(s); and (4) an assumption in
good faith of municipal powers.
Id. at 1154. We need not decide whether the Legislature meant to
abolish both municipal and private de facto corporations, because
the Borough has failed to establish colorable compliance with the
notice provisions, as detailed above.
21 On remand, LBC may consider the underlying merits of
Villages' original complaint, i.e., that the northwest boundary
of the Borough "fail[s] to conform generally to natural
geography." See AS 29.05.031.
22 "We will not overturn a trial court's decision that an
action is barred by laches unless we have a firm and definite
conviction that a mistake has been committed." Pavlik, 637 P.2d
at 1047.
The Borough acknowledges that the defense is "typically
raised in response to delays in filing suit, . . . [but] applies
to post-filing delay as well"because such application serves the
state's policy to resolve challenges to municipal formation
quickly. See AS 29.05.150 (prescribing six-month statute of
limitations for challenging municipal incorporation). Villages
respond that Alaska cases limit the laches defense to situations
in which the plaintiff has "unreasonably delayed in bringing the
action." Foster v. State, 752 P.2d 459, 465 (Alaska 1988).
Moreover, Villages contend that in other jurisdictions applying
laches to post-filing delays, courts have required a
demonstration of belief of abandonment. See Butcher v. City of
Albuquerque, 620 P.2d 1267, 1270 (N.M. 1980).
23 See infra part II.C.2.
24 The court ordered that (1) the Borough's northwest
boundary was voidable due to defective notice; (2) LBC had to
reconsider the northwest boundary following required notice and
hearing provisions; and (3) a restricted election be held.
25 At the same time, LBC presented three questions
regarding clarification of the remedy to the court, to which it
received the following answers:
[Q] (1) [Is] the LBC . . . required to conduct on
[sic] election on the issue of the northwest boundary
of the [Borough] even if, after reconsideration
pursuant to the court's decision, the LBC determines
the northwest boundary should remain the same[?]
[A (1) No. The court requested supplemental
briefing; the parties thereafter "agreed that no
election would be required should the Commission vote
to retain the present boundary."]
[Q] (2) [Will] an election limited to the question of
the northwest boundary . . . correct the de facto
incorporation deficiency of the [Borough?]
[A (2)] [A]dhering to the procedures outlined in the
[oral] decision, as supplemented hereafter on the
election question, will cure the deficiencies found in
the decision and render the incorporation no longer
voidable.
[Q] (3) [I]f no election is required and the LBC does
not change the northwest boundary, what is the legal
status of the [Borough] under the court's decision?
[A (3)] [S]ame as was provided in response to
Question No. 2.
26 The court acknowledged Villages' opposing argument that
the results of such an election would be "foreordained."
27 Article X, section 12 of the Alaska Constitution
provides:
Boundaries. A local boundary
commission or board shall be established by
law in the executive branch of the state
government. The commission or board may
consider any proposed local government
boundary change. It may present proposed
changes to the legislature during the first
ten days of any regular session. The change
shall become effective forty-five days after
presentation or at the end of the session,
whichever is earlier, unless disapproved by a
resolution concurred in by a majority of the
members of each house. The commission or
board, subject to law, may establish
procedures whereby boundaries may be adjusted
by local action.
28 Villages note that
[i]f the voters choose disincorporation,
they obviously do not consider it a
devastating prospect. It is axiomatic that
all political power is inherent in the
people, Alaska Const. Art. I, 2, and the
people already hold the power to dissolve a
unit of local government. AS 29.06.460 et
seq.
29 The Fairview Public Utility District argued that it had
been annexed improperly to the City of Anchorage by legislative
action instead of petition-election. Fairview, 368 P.2d at 541,
543. This court affirmed the annexation, expressing concern for
objectivity in making boundary decisions. Id. at 543-44.
30 ACCFT has guided Alaska courts in fashioning remedies,
even outside the context of the Open Meetings Act. See Matanuska-
Susitna Borough v. Hammond, 726 P.2d 166, 183 n.32 (Alaska 1986).
31 We granted expedited consideration and issued an order
on July 22, 1994 that forms the basis for this opinion.
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