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[F] Marlow v. Municipality of Anchorage (2/10/95), 889 P 2d 599
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Notice: This opinion is subject to 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, phone (907) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
MARC MARLOW, )
) Supreme Court No. S-5986
Appellant, )
) Superior Court No.
v. ) 3AN-92-11263 CI
)
MUNICIPALITY OF ANCHORAGE, ) O P I N I O N
and CARR-GOTTSTEIN )
PROPERTIES, INC., )
)
Appellees. ) [No. 4164 - February 10, 1995]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Glen C. Anderson,
Judge.
Appearances: Margaret J. Rawitz, Hoge &
Lekisch, Anchorage, for Appellant. Leslie K.
Schumacher, Scott A. Brandt-Erichsen,
Assistant Municipal Attorneys, Richard L.
McVeigh, Municipal Attorney, Anchorage, for
Appellee Municipality of Anchorage. John C.
McCarron, Mark E. Ashburn, Donald W.
McClintock, Ashburn & Mason, Anchorage, for
Appellee Carr-Gottstein Properties, Inc.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
MATTHEWS, Justice.
Seeking to develop a cooperative senior citizen housing
project on Tract 6 of the Arnold L. Muldoon Subdivision,
appellant Marc Marlow petitioned the Anchorage Municipal Assembly
to have the tract rezoned to accommodate his development plans.
The Assembly passed an ordinance which rezoned Marlow's property
to a zoning classification compatible with Marlow's proposed
project. The ordinance contains the following provision:
Section 3.d. Prior to the application
for a building permit, a public hearing site
plan review shall be conducted by the
Planning and Zoning Commission. Included in
the review will be a Traffic impact [sic]
Analysis which will specifically address
ingress and egree [sic] points, drainage
study, wetlands determination, utility
easements, extensions and construction
requirements and all of the items required
under AMC Section 21.15.030. The Commission
shall approve the site plan prior to the
issuance of any building permits.
Pursuant to this provision, Marlow presented a site
plan for the first phase of his project to the Planning and
Zoning Commission. A public hearing was conducted on this site
plan. At the public hearing, Paul Carr testified on behalf of
Carr-Gottstein Properties, Inc., the owner of an adjacent tract.
Carr stated that while he had no objection to the project, he had
reviewed the site plan and "did not see any utility extension or
even if it's accommodated." Referring to the limitation in the
ordinance requiring review of "utility easements, extensions and
construction requirements," Carr stated: "I'm not able to
identify any of those things, nor did we receive any comment or
call or solicitation of where we might go with that from Mr.
Marlow." Carr summarized his position as follows:
Our concern, as stated under the
original Planning and Zoning Commission
hearing is that we're not opposed to the
rezoning, nor are we opposed to the project,
simply that a tract of land of this size
would not be developed under the existing
zoning without subdivision; and during that
subdivision process, there would be a normal
extension of utilities and utility easements.
That's all we're asking for is that the
utility extensions be considered as they
would for us or any other developer.
A representative of Marlow responded to Carr's
statement as follows: "I wanted to respond to Paul's statement
and apologize for any lack of coordination. It is our intent to
work out the issues of water and sewer (acquisition)
(indistinguishable). We are finalizing the location of water and
sewer and we will (indistinguishable)."
Following the public hearing, the Planning and Zoning
Commission granted final approval to the site plan subject to a
number of conditions. The resolution granting such approval
contained a finding of fact regarding utilities, stating:
The petitioner will work with [Carr-
Gottstein] with regard to extension of
utilities. The site slopes approximately 70
feet from east to west and if access for
utilities is restricted to the area of
encroachment it might cause problems for
[Carr-Gottstein]. The Commission agreed that
the final location of the utility easement
will be left to [Marlow] and [Carr-Gottstein]
so long as there is minimal disturbance in
the greenbelt vegetation.
Dissatisfied with the Planning Commission's failure to
issue a more specific ruling concerning extension of utilities,
Carr-Gottstein appealed the Planning Commission's approval of the
site plan to the Board of Adjustment (the Board) pursuant to AMC
21.30.010-.100. The Board granted the appeal and ruled that
utilities must be extended to the boundary of Carr-Gottstein's
property. In its ruling, the Board made the following
conclusions:
1. The special limitations [in
the ordinance] specify the Planning and
Zoning Commission must examine utility
easements, extensions and construction
requirements in conjunction with the
site plan review. The evidence in the
record demonstrates the Commission
failed to adequately examine these
issues.
2. The record demonstrates the
Commission delegated its responsibility
for utility easements, extensions and
construction to Appellee Marlow contrary
to the requirements of the rezoning
special limitations.
3. The record from the
deliberations of the Assembly concerning
the construction of utilities across
Tract 6 [Marlow's property] to Tract 5
[Carr-Gottstein's property] clearly
shows the Assembly directed the utility
extensions and construction as part of
the rezoning and appellee Marlow agreed
to the requirement.
The Board decreed: "[T]he appeal in the above captioned case is
granted and utilities must be extended to the property line of
Tract 5 [Carr-Gottstein's property] consistent with AWWU design
regulations."
Marlow appealed the Board's decision to the superior
court, which affirmed the Board's decision. Marlow now appeals
to this court.
Marlow argues on appeal that the Board incorrectly
interpreted the rezoning ordinance to require the extension of
utilities to Carr-Gottstein's property line. He also contends
that the Board erred in concluding that the Planning Commission
improperly delegated its responsibility to review utility
easements, extensions, and construction to Marlow. We conclude
that the Board erred in construing the rezoning ordinance to
require the extension of utilities, but that the Planning
Commission failed to review utility easements, extensions, and
construction as required by the rezoning ordinance.1
1. The rezoning ordinance does not require extension
of utilities.
The literal language of the rezoning ordinance requires
the Planning and Zoning Commission to conduct a site plan review
at a public hearing. The review must include "utility easements,
extensions and construction requirements . . . ." The language
of the ordinance does not require that any particular utility
easements be placed on the land or that any particular utility
extensions be built. Marlow argues that the rezoning ordinance
means only what it says and does not contain an implied require
ment that utilities be extended to Carr-Gottstein's property.
Carr-Gottstein, on the other hand, argues that the ordinance can
reasonably be interpreted to require extension of utilities to
its property.
In interpreting a statute or an ordinance, our goal is
to give effect to the intent of the law-making body "with due
regard for the meaning that the language in the provision conveys
to others." Foreman v. Anchorage Equal Rights Comm'n, 779 P.2d
1199, 1201 (Alaska 1989) (citing State v. Alex, 646 P.2d 203,
208-09 n.4 (Alaska 1982)). In an effort to meet this goal, we
have "rejected a mechanical application of the plain meaning rule
in favor of a sliding scale approach." Peninsula Marketing Ass'n
v. State, 817 P.2d 917, 922 (Alaska 1991). Under the sliding
scale approach, the plainer the language of the statute, the more
convincing contrary legislative history must be. Id.; City of
Homer v. Gangl, 650 P.2d 396, 400 n.4 (Alaska 1982).
Marlow is correct that the plain language of the
ordinance does not mandate a particular result, such as extension
of utilities to Carr-Gottstein's property. The legislative
history available in this case is the Assembly's discussion at
two public hearings held to consider Marlow's request to rezone
his property. At the second hearing, Paul Carr, representing
Carr-Gottstein Properties, proposed an amendment to the rezoning
ordinance which would require the Commission to include in the
site plan review "utility easements, extensions and construction
requirements." Explaining the amendment, Carr expressed two
concerns. His first concern involved the size and capability of
utilities. He stated:
[I]n relation to the utility
requirements . . . we do not [know] if those
utilities are properly sized to handle . . .
all of the developments that would normally
occur down Muldoon Road. We don't feel that
we or other property owners should bear the
brunt of upgrades or anything else that might
occur at the rezoning by an increased density
or change in use for fire flow
(indiscernible) such a large building that
you would not normally have in houses or
anything else.
Carr's second concern involved extension of utilities
to his property, Tract 5. With respect to extension, Carr
stated:
We do not feel we should have to pay for
easements that would normally be extended to
our property: drainage, storm sewer, water,
or other easements. Those easements should
be there. If during the normal subdivision
process, you would extend those utilities to
the adjoining property, that's what should be
done.
(Emphasis added.)
Assembly member Wood attempted to clarify Carr's
position and asked whether the easements he was requesting would
service his property. Carr responded that they would. He did
not correct Wood's statement by pointing out that he was
requesting easements and extensions.
Throughout the hearing Marlow stated that he did not
consent to extending utilities to Tract 5 and that he did not
think he or his future clients should have to pay to extend
utilities to Tract 5. He did, however, consent to Carr's
proposed amendment requiring the Planning Commission to include
the utilities issue in the site plan review.
Although the hearing transcript indicates that the
Assembly considered Carr's concerns regarding utility easements
and extensions, it is not clear how the Assembly intended to
resolve the issues raised. During discussion, the Assembly and
Carr failed to distinguish between utility easements and
extensions. Thus, it is unclear whether the Assembly actually
understood Carr's request and what it intended Marlow to do with
respect to utilities. No member of the Assembly actually
expressed an intent to require Marlow to pay to extend utilities
to Tract 5. Furthermore, Carr raised several different concerns
with respect to utilities, including the size and capability of
utilities, the location of utility easements, and the extension
of utilities to Tract 5. Thus, it is not apparent from the
hearing transcript that the amendment was intended to require
Marlow to extend utilities to the adjoining tract.2
Neither the legislative history nor the language of the
ordinance support the Board's interpretation of the ordinance as
requiring the Planning and Zoning Commission to decline to
approve a site plan not providing for extension of utilities to
Carr-Gottstein's property. The Board erred by ruling that Marlow
must extend utilities to Tract 5.
2. The Commission failed to properly review utility
issues.
Under the ordinance, the Planning and Zoning Commission
was required to review utility easements, extensions, and
construction requirements at a public hearing.3 At the public
hearing some discussion of these subjects took place but no
decisions concerning the location of utility easements or
construction of utility extensions were made. Instead, the
Commission found that Marlow "will work" with Carr-Gottstein
"with regard to extension of utilities"and that "the final
location of the utility easement will be left to [Marlow] and
[Carr-Gottstein]."
We assume that this finding was intended by the
Commission to be a command to Marlow to attempt to reach an
agreement with Carr-Gottstein concerning utility extensions and
the location of utility easements. While this is a reasonable
approach, it does not comply with the ordinance's requirement of
a review of utility easements and extensions. Utility easements
and extensions cannot be reviewed unless there is a specific
proposal concerning them. As there was none in this case, the
approval of the Planning and Zoning Commission was premature
under the rezoning ordinance.
For the above reasons, the judgment of the superior
court is REVERSED and this case is REMANDED to the superior court
with instructions to vacate the Board's decision and the Planning
and Zoning Commission's site plan approval and remand this case
to the Planning and Zoning Commission for further proceedings
consistent with this opinion.4
_______________________________
1 Since the issues we address in this appeal are pure
questions of statutory construction which do not involve agency
expertise, we apply the independent judgment standard of review.
See Cook Inlet Pipe Line Co. v. Alaska Pub. Util. Comm'n, 836
P.2d 343, 348 (Alaska 1992).
2 The only indication that the Assembly intended Marlow
to extend utilities to Tract 5 is a set of statements made by
some of the Assembly members at the appeal before the Board. Not
only do these statements fail to prove that the Assembly intended
Marlow to extend utilities to Tract 5, but they are irrelevant to
our determination of the meaning of the ordinance, as we will not
consider the subsequent testimony of a legislator detailing his
or her understanding of an act or the recollections of an
individual legislator regarding the intent of the body. See
State, Dep't of Community & Regional Affairs v. Sisters of
Providence, 752 P.2d 1012 (Alaska 1988) (holding that letter
written by senator three years after legislative debate adds
nothing to the legislative history); Lynden Transp., Inc. v.
State, 532 P.2d 700, 716 (Alaska 1975) (testimony by legislator
excluded); Alaska Pub. Emps. Ass'n. v. State, 525 P.2d 12, 16
(Alaska 1974); see also Cook Inlet Native Ass'n v. Bower, 810
F.2d 1471, 1475 (9th Cir. 1987) (statements of a former
legislator after a bill's passage are entitled to no weight); 2A
Norman J. Singer, Sutherland Statutory Construction 48.16 at
365-68 (5th ed. 1992) & 48.03 (5th ed. Supp.) (stating that
later observations by those involved in legislation's creation
are not considered when referring to legislative history).
3 The relevant part of the ordinance states:
Prior to the application for a building
permit, a public hearing site plan review
shall be conducted by the Planning and Zoning
Commission. Included in the review will be a
Traffic impact [sic] Analysis which will
specifically address ingress and egree [sic]
points, drainage study, wetlands determin
ation, utility easements, extensions and
construction requirements and all of the
items required under AMC Section 21.15.030.
The Commission shall approve the site plan
prior to the issuance of any building
permits.
(Emphasis added.) Marlow argues that the emphasized sentence
only required the Planning Commission to "address" utility
easements and extensions, and that the Commission satisfied this
requirement by finding that Marlow would work together with Carr-
Gottstein on utility assessments and easements. Marlow
apparently reads the emphasized sentence in the following way:
Included in the review will be a Traffic
Impact Analysis which will specifically
address
1) ingress and egress points,
2) drainage study,
3) wetlands determination,
4) utility easements, extensions
and construction requirements,
5) and all of the items required
under AMC Section 21.15.030.
Marlow's reading cannot be correct. Marlow's reading would
require a Traffic Impact Analysis which addresses factors such as
drainage study and utility extensions. Drainage and utilities
have no relationship to traffic. Only ingress and egress points
are related to traffic. ("Ingress and egress points"refers to
points where traffic may enter and exit the property.) The only
sensible way to read the sentence is:
Included in the review will be
1) a Traffic Impact Analysis which
will specifically address ingress and egress
points,
2) drainage study,
3) wetlands determination,
4) utility easements, extensions
and construction requirements,
5) and all of the items required
under AMC Section 21.15.030.
Thus, the Planning and Zoning Commission was required to review
utility easements and extensions.
4 Our disposition of this case moots the procedural and
due process arguments presented by Marlow in this appeal.
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