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Price v. Dahl (3/15/96), 912 P 2d 541
Notice: This opinion 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, telephone (907) 264-0607, fax (907) 276-
THE SUPREME COURT OF THE STATE OF ALASKA
JUDY M. PRICE; )
PAUL H. BRATTON, JR., )
) Supreme Court No. S-6596
) Superior Court No.
) 3PA-94-00035 Civil
) O P I N I O N
LINDA DAHL, CLERK, )
MATANUSKA-SUSITNA BOROUGH, ) [No. 4326 - March 15, 1996]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Beverly Cutler, Judge.
Appearances: Eric Smith, Anchorage, for
Appellants. Michael Gatti, Borough Attorney,
Matanuska-Susitna Borough, Palmer, for
Before: Rabinowitz, Matthews, Compton and
Eastaugh, Justices. [Moore, Chief Justice,
Appellants Price and Bratton filed an application for a
petition to hold a referendum on the Matanuska-Susitna (Mat-Su)
Borough's ordinance adopting the Chase Comprehensive Plan. The
Mat-Su clerk, Linda Dahl, rejected the petition. The superior
court upheld Dahl's decision, holding that Alaska's specific
planning laws preempt the general right to a referendum.
On appeal, Price and Bratton contend that the trial
court's decision was erroneous because the right to a referendum
has not been preempted. Dahl argues that it has been preempted.
In the alternative, Dahl claims that the subject matter of the
referendum violates the Alaska constitution, and that the
petition's attempt to hold the referendum only among residents of
the Chase Comprehensive Plan area is improper. Price and Bratton
deny that anything is wrong with their proposed referendum.
We affirm the trial court's decision on the ground that
the proposed referendum election could only be held on a borough-
II. FACTS AND PROCEEDINGS
State law requires the Mat-Su Borough to adopt a
comprehensive plan. AS 29.40.030(b). A comprehensive plan is a
"compilation of policy statements, goals, standards, and maps for
guiding the physical, social, and economic development" of the
borough. AS 29.40.030(a). It serves as a "long-range policy
guide for development of the [municipality] as a whole." Lazy
Mountain Land Club v. Matanuska-Susitna, 904 P.2d 373, 377
(Alaska 1995) (quoting Donald G. Hagman, Urban Planning and Land
Development Control Law 42 (1971)). Borough land use regulations
are to be "in accordance"with the comprehensive plan. AS
29.40.040(a). Requiring zoning decisions to be in accord with
the comprehensive plan "helps to 'guard against prejudice,
arbitrary decision-making, and improper motives' by providing
substantive standards against which to measure individual zoning
decisions." Lazy Mountain, 904 P.2d at 377-78 (quoting South
Anchorage Concerned Coalition, Inc. v. Coffey, 862 P.2d 168, 174
(Alaska 1993)). A comprehensive plan must be in place before
borough zoning regulations can be implemented. Lazy Mountain,
904 P.2d at 377-79. This requirement is not a barrier to pre-
existing zoning regulations so long as they comply with the
comprehensive plan. Id. at 379 n.22.
In 1986 the Mat-Su Borough directed the planning
commission to develop comprehensive plans for the borough on a
community-by-community basis. One of the communities selected
was the Chase area of the Mat-Su Borough. The planning
commission in turn established a citizens' advisory committee on
the Chase Comprehensive Plan (CCP). The citizens' committee
recommended, among other things, that the CCP discourage the
construction of roads. The appellants in this case, Price and
Bratton, as well as a majority of the citizens' committee,
apparently considered this policy goal vital to the preservation
of the bush lifestyle Chase residents enjoy. However, the
planning commission thought that the CCP should encourage the
development of roads in the area on pre-existing rights of way.
On October 19, 1993, the Mat-Su Borough assembly approved a CCP
that included the goal of approving roads on already existing
rights of way. Ordinance Serial No. 93-071(AM)(1).
On November 15, 1993, Price filed an application for a
referendum petition with the Mat-Su Borough Clerk, Linda Dahl.
The application sought a referendum on the CCP. Price and
Bratton gathered signatures from twenty people residing in the
area covered by the CCP. The application sought to have only CCP
residents vote on the referendum.
The Acting Borough Clerk, Kristie L. VanGorder,
rejected the application.1 She found that the application was in
improper form because it sought to conduct a referendum only in
Chase, instead of borough-wide. She also believed that a
planning matter could not be the subject of a referendum.
Price and Bratton filed suit against Dahl and requested
a preliminary injunction. The trial court consolidated the
request for a preliminary injunction with a trial on the merits.
The parties filed cross-motions for summary judgment, and the
court granted judgment for Dahl in April 1994. The superior
court held that Alaska planning law supersedes the general power
of referendum. It did not reach the issues of whether a land use
ordinance could be the subject of a referendum, or whether Price
and Bratton selected the proper pool of voters for the
referendum. Price and Bratton filed a timely notice of appeal.
The Election Proposed in the Referendum Application Violates
Alaska Law Because It Would Not Include All Voters in the
Signature requirements for local initiatives and
referenda are provided in AS 29.26.130. Subsection (e) provides:
If the ordinance or resolution that is
the subject of an initiative or referendum
petition affects only an area that is less
than the entire area of the municipality,
only voters residing in the affected area may
sign the petition.
Price and Bratton argue that AS 29.26.130(e) requires
the referendum on the CCP to be voted on solely by those living
in the affected area. However, the text of the statute does not
address the eligibility of voters. Subsection 130(e) only
addresses signature requirements. The chapter on local
initiatives and referenda is silent on the issue of who may vote
in such elections. See AS 29.26.100-.190.
Voter eligibility for local elections is covered in
AS 29.26.050. Only persons registered to vote at a residence
address within the municipality may vote in municipal elections.
AS 29.26.050. As to referendum and initiative measures,
(b) . . . . in order to vote for a
candidate or on a ballot measure relating to
a specific local election district or service
area, a municipality may by ordinance require
that a person be registered to vote . . . at
an address within the boundaries of that
local election district or service area.
The statute provides a default rule that all municipal
voters must be registered to vote in the municipality.
AS 29.26.050(a). Municipalities themselves may impose the
further requirement that voters on issues involving local
election districts or service areas must be registered to vote
within that district or area. AS 29.26.050(b). This rule is not
at issue in this case, because AS 29.26.050(b) by its terms only
applies to local election districts and service areas. The area
covered by the CCP is neither, and Price and Bratton fail to
argue otherwise.3 Thus, residents of the entire municipality
have the right to vote in a referendum or initiative on the CCP.
Price and Bratton may have been correct in concluding that only
CCP-area residents could sign their petition, but their
application was flawed because it attempted to prevent people
residing outside the CCP-area from voting.4
We hold that the application was properly rejected
because it did not select the proper pool of voters for the
proposed referendum election. The decision of the superior court
1 AS 29.26.110 provides that the municipal clerk must
certify a petition for a referendum within two weeks if the
application is in proper form.
2 The trial court did not rule on this issue when it
granted summary judgment. However, when affirming a grant of
summary judgment, this court may base its ruling on grounds other
than those advanced by the trial court. Native Village of Eyak
v. GC Contractors, 658 P.2d 756 (Alaska 1983); Sisters of
Providence v. Municipality of Anchorage, 672 P.2d 446, 448 n.2
(Alaska 1983). We express no opinion on the constitutionality of
the proposed referendum or its validity under the Alaska land use
3 We recently defined a service area as "a specific
geographical area within which a municipal service is furnished
by a borough." North Kenai Peninsula Rd. Maintenance Serv. Area
v. Kenai Peninsula Borough, 850 P.2d 636, 639 (Alaska 1993).
Local election districts may be established by municipalities
wishing to apportion representation on other than an at-large
basis. See, e.g., AS 29.06.320 (requiring charters to define
election districts when representatives are not elected on
areawide basis); AS 29.20.070 (allowing local assemblies to elect
members by election district).
4 Neither party has addressed the issue of whether Dahl
had the legal right or duty to reject the application for a
petition on the basis of its substantive validity or its call for
a Chase-only election. See AS 29.26.110-.180. We have assumed,
without deciding, that she had such a legal right or duty.