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Abbott, Shank, & Shank v. Kodiak Island Borough (7/28/95), 899 P 2d 922
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
JENNIFER ABBOTT, JOHN SHANK, )
and VIRGINIA SHANK, )
) Supreme Court No. S-6073
) Superior Court No.
v. ) 3AN-92-512 CI
KODIAK ISLAND BOROUGH ) O P I N I O N
ASSEMBLY AS THE ASSEMBLY and )
in its capacity as a BOARD )
OF ADJUSTMENT ON APPEAL from ) [No. 4231 - July 28, 1995]
the Kodiak Island Borough )
Planning Commission, )
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Donald D. Hopwood,
Appearances: John W. Abbott, Anchorage,
for Appellants. Joel H. Bolger, Karen E.
Bendler, Jamin, Ebell, Bolger & Gentry,
Kodiak, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Jennifer Abbott, John Shank, and Virginia Shank
("Owners") appeal a superior court award of attorney's fees to
the Kodiak Island Borough Assembly ("Assembly") arising out of a
zoning controversy. Owners argue that the superior court
erroneously decided that they are not public interest litigants.
Owners also argue that the attorney's fees were excessive,
unnecessary, and based on duplicated services.
I. FACTS AND PROCEEDINGS
In 1991, intending to build a housing development, the
Natives of Kodiak applied for the rezoning of a piece of property
and for preliminary approval of the property's subdivision plat.
The rezoning was opposed by many local residents who own property
in the vicinity of the planned development. The residents argued
that the rezoning would harm the environment, damage the general
character of their neighborhood, create drainage problems,
decrease property values, and cause them to pay for road
improvements. The dominant concern of the residents appeared to
be that the proposed development would result in greatly
increased traffic on Woodland Drive, a street on which many of
the complainants lived leading to the proposed development.
The rezoning and subdivision plat were approved by the
Kodiak Island Borough Planning and Zoning Commission and the
Kodiak Assembly. Owners, who own property located on Woodland
Drive, appealed the Assembly's decision to the superior court.
On appeal, among other claims, Owners argued that the rezoning
amounted to an unconstitutional taking of property without just
compensation. The superior court affirmed the Assembly's
decision. The superior court awarded $5,580 in attorney's fees
to the Assembly. Owners appeal only the award of attorney's
A. Are Owners Public Interest Litigants?
Owners argue that the superior court erred by denying
them public interest litigant status. "A trial court's
determination of whether a party is a public interest litigant is
reviewed for an abuse of discretion." Municipality of Anchorage
v. Citizens for Representative Governance, 880 P.2d 1058, 1061
(Alaska 1994). To qualify as a public interest litigant, a party
must meet a four-part test:
(1) Is the case designed to effectuate
strong public policies?
(2) If the plaintiff succeeds will
numerous people receive benefits from the
(3) Can only a private party have been
expected to bring the suit?
(4) Would the purported public interest
litigant have [lacked] sufficient economic
incentive to file suit . . . if the action
involved only narrow issues [without] general
Id. at 1061-62.
The superior court denied Owners public interest
litigant status because "[t]he bases for several of their issues
on appeal show that they had sufficient economic incentives to
proceed with the litigation without the issues that were also
shared by others." The superior court was also uncertain as to
whether numerous people would receive benefits from the lawsuit.
In two previous decisions, Oceanview Homeowners Ass'n,
Inc. v. Quadrant Construction & Engineering, 680 P.2d 793, 799
(Alaska 1984), and Brookwood Area Homeowners Ass'n, Inc. v.
Municipality of Anchorage, 702 P.2d 1317, 1326-27 (Alaska 1985),
we granted public interest litigant status to homeowners
associations which had challenged zoning decisions.1 In
Oceanview, a zoning board revoked zoning orders which restricted
improvements to and the use of a private airstrip located near
dwellings of members of a homeowners association. 680 P.2d at
795. The homeowners association appealed the zoning board's
action to the superior court. Id. at 797. We decided that the
superior court erred by denying the homeowners association public
interest litigant status. Id. at 799.
We ruled that the first three requirements of the
public interest litigant status test had been met because the
homeowners' "appeal was designed to vindicate a strong public
policy in effectuating zoning ordinances, [because] numerous
people in the area would have benefitted had it succeeded, and
[because] only a private party could have been expected to bring
the appeal." Id. at 799. With regard to the fourth requirement,
we stated, "Oceanview's [the homeowners'] consistent emphasis on
health and safety to the virtual exclusion of economic concerns
indicates that it would not have had 'sufficient economic
incentive to bring the lawsuit even if it involved only narrow
issues lacking general importance.'" Id. (emphasis added).2
We followed Oceanview in Brookwood, where a homeowners
association appealed a zoning decision which had allowed a
development to go forward. 702 P.2d at 1320. The basis for the
appeal was an alleged violation of the Open Meetings Act. Id.
We affirmed the superior court's decision that the homeowners
association was a public interest litigant. Id. at 1326-27.
Accepting a statement by the homeowners association that the
proposed development would not result in economic injury to its
members, we ruled that the homeowners would have lacked
sufficient economic incentive to bring suit if the action had not
involved issues of general importance. Id. at 1327.
Under our decisions in Oceanview and Brookwood, Owners
satisfy the first three requirements for public interest
litigants. Owners' litigation was partially designed to
effectuate strong public policies concerning protection of the
environment and ensuring that procedural standards for zoning
decisions are properly followed. Numerous property owners in the
vicinity of the proposed development would have benefitted from
success in the lawsuit. Only a private party could have been
expected to bring the suit.
The determinative factor is whether Owners would have
lacked sufficient economic incentive to file suit if the action
involved only narrow issues without general importance.
Throughout the administrative and judicial process, Owners argued
that the rezoning would amount to a taking without just
compensation, would significantly reduce the value of their land,
and would require them to pay for improvements to Woodland Drive.
For instance, in their statement of points on appeal to the
superior court, Owners claimed that the Kodiak Zoning Commission
erred "[i]n granting conditional plan approval for a plat that
will result in the lowering of adjacent land value without
providing for compensation to those adjacent land owners, in
contravention of both the State and U.S. Constitutions."
Earlier, in a letter to the Assembly sent during the
administrative process, Owners' attorney stated that the rezoning
"will substantially reduce the market fair value of [Jennifer
Abbott's] property"and threatened to file a taking without just
compensation lawsuit against Kodiak Island Borough.
Thus, this case is distinguishable from Oceanview,
where the landowners emphasized health and safety issues "to the
virtual exclusion of economic concerns." See 680 P.2d at 799.
The homeowners in Oceanview probably did suffer some economic
injury as a result of the zoning action they challenged. See
supra note 2. However, in this case, Owners believed the
economic harm facing them was so substantial that they felt they
had a viable taking without just compensation claim. As a
result, this case is unlike Oceanview and Brookwood and is more
analogous to Stein v. Kelso, 846 P.2d 123 (Alaska 1993).
In Stein, a group of miners contested the Department of
Environmental Conservation's (DEC) certification of two pollution
discharge permits. Id. at 124. The permits lowered the
pollutant amounts permitted in wastewater emitted by the miners'
mining operations. Id. at 125. The miners appealed the
certification to the superior court, arguing that they were
deprived of a property interest without just compensation or due
process of law, and the superior court affirmed. Id. at 124. We
upheld the superior court's determination that the miners were
not public interest litigants. Id. at 127. We stated:
The miners' own pleadings show that they
sought a ruling that they had "lost their
property rights and must be justly
compensated." Although the miners now
maintain that they would not receive any
direct economic benefit from a favorable
decision concerning DEC certification
procedures, this assertion is in direct
contradiction to their requested relief.
Likewise, in this case, Owners first made a taking
without just compensation claim and now "maintain that they would
not receive any direct economic benefit from a favorable decision
. . . in direct contradiction to their requested relief." See
id. Therefore, the superior court's finding that Owners "had
sufficient economic incentives to proceed with the litigation
without the issues that were also shared by others" is not
clearly erroneous. We affirm the superior court's decision that
Owners were not public interest litigants.
B. Was the Attorney's Fees Award Improper Because of
Duplicated, Unnecessary, or Excessive Services?
"Where a trial court sits as an intermediate appellate
tribunal, it has broad discretion to award a party reasonable
attorney's fees." Cook Inlet Pipe Line Co. v. Alaska Pub. Util.
Comm'n, 836 P.2d 343, 354 (Alaska 1992). "A trial court's award
will be affirmed unless there has been a clear abuse of
discretion." Lyman v. State, 824 P.2d 703, 706 (Alaska 1992).
"We will overturn an award of attorney's fees and costs only if
such an award was 'manifestly unreasonable.'" Id. (citing
Blackford v. Taggart, 672 P.2d 888, 891 (Alaska 1983)).
Owners argue that the trial court abused its discretion
in basing its award of attorney's fees on duplicated attorney
services, pointing out that the Assembly's attorneys worked on
the case in two different offices. However, Owners fail to "give
any examples of duplicative and unnecessary services, by record
citation or otherwise,"and have consequently "failed to meet
[their] burden of showing a clear abuse of discretion by the
superior court." See State v. Fairbanks N. Star Borough Sch.
Dist., 621 P.2d 1329, 1335 (Alaska 1981).
Owners also argue that the superior court abused its
discretion by basing its award on actual attorney's fees which
were unnecessary and excessive. Owners have not demonstrated
that the fees were unnecessary or excessive.3 The Assembly
submitted a detailed itemization of attorney services, and the
superior court found that the fees "were necessarily incurred,
and the hourly rates and the hours spent were reasonable." The
superior court did not abuse its discretion.
The superior court did not err in concluding that
Owners were not public interest litigants. Their taking without
just compensation claim and other repeated assertions that they
would suffer a significant economic detriment from the proposed
rezoning could reasonably be regarded as evidencing sufficient
economic incentive to file suit. Owners did not demonstrate that
the attorney's fees were unnecessary, excessive, or based on
duplicated services. The attorney's fees award is AFFIRMED.
1 In another case, Anchorage v. McCabe, 568 P.2d 986
(Alaska 1977), a group of homeowners appealed a zoning decision
which permitted the construction of two eleven-story buildings in
their neighborhood. The superior court, the City of Anchorage,
and the homeowners all agreed that the homeowners were public
interest litigants. Id. at 989. We thus did not have occasion
to discuss whether it was proper to treat the homeowners as
public interest litigants.
2 We rejected an argument that the homeowners did not
deserve public interest litigant status because they had claimed
for purposes of gaining standing that "the immediate effect of
the [zoning] decision is to deny or diminish the value of real
property owned or leased by"them. Id. at 799 n.3. We stated,
"This is the only reference to economic concerns to be found in
the record." Id. This reference to possible economic losses did
not demonstrate that the homeowners would have had sufficient
economic incentive to bring suit if the action had not involved
issues of general importance, as it was an isolated statement
made only for standing purposes. See id.
3 The only specific time expenditures of the Assembly's
attorneys which Owners point to as unnecessary or excessive are
[O]n 06/03/92 JHB spent 12 minutes
reviewing a motion for extension of time; on
06/05/92 WWM spent 12 minutes reviewing
extension documents; numerous entries for
review of what are apparently one-page
written matters each taking 6 minutes; on
09/01/92 18 minutes was required to prepare a
form request for oral argument; on 09.10.92
18 minutes was consumed in reviewing a motion
for extension of time and preparing a non-
opposition; a total of 7.6 hours was spent in
"file review"while a total of 74.6 hours was
expended in "research and writing" of the
Owners did not give reasons as to why these time entries repre
sented an unreasonable expenditure of time.