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Persson-Mokvist v. Anderson (8/1/97), 942 P 2d 1154
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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) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DAL PERSSON-MOKVIST, )
) Supreme Court No. S-7453
Appellant, )
) Superior Court No.
v. ) 3AN-92-3037 CI
)
ROBERT H. ANDERSON, VILMA M. ) O P I N I O N
ANDERSON, BURTON H. BOMHOFF, )
NORMAN D. VAUGHAN, and CAROLYN )
MUEGGE-VAUGHAN, )
)
Appellees. ) [No. 4861 - August 1,
1997]
___________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage,
Brian Shortell, Judge.
Appearances: Danny W. Burton, Wasilla, for
Appellant. Robin L. Koutchak, Edgar Paul
Boyko and Associates, Anchorage, for
Appellees.
Before: Compton, Chief Justice, Matthews,
Eastaugh, and Fabe, Justices. [Rabinowitz,
Justice, not participating.]
MATTHEWS, Justice.
A note in the Peters Creek Subdivision plat states that
lots are "for residential/recreational use." Several subdivision
residents keep and train dog teams; one couple maintains a bed-
and-breakfast. The question presented is whether the superior
court erred in concluding that these uses did not violate the
note. We answer "no," because the dog-related uses are
recreational and the bed-and-breakfast is a permissible use
incidental to residential use.
I. FACTS AND PROCEEDINGS
The Peters Creek Subdivision was state land that was
subdivided in 1981 into five-acre lots. Plat note 21 states:
"This subdivision is for residential/recreational use." Dal
Persson-Mokvist purchased his lot in the subdivision in 1982.
In 1992 Persson-Mokvist filed a complaint against the
appellees, also subdivision lot owners, alleging that their uses
violate note 21. After a court trial, the court concluded that
the challenged uses do not conflict with the note.
Appellees' uses, as found by the trial court, are as
follows. Appellees Robert and Vilma Anderson are residents of
the subdivision. They use three cabins on their two lots as bed-
and-breakfast rentals, renting them approximately thirty to sixty
days per year. The Andersons have kept between ten and twelve of
their own sled dogs on their property, which their daughter
trained for her use in the Junior Iditarod race. The Andersons
do not raise dogs to sell.
Appellee Burton Bomhoff is a recreational dog musher
who has run in the Iditarod race eight times. He has spent about
one-half million dollars on dog mushing, but has won only about
$10,000. The trial court found that Bomhoff was not in the "dog-
racing business,"and that his mushing was an "expensive hobby."
He has never profited from selling dogs.
Appellees Norman Vaughan and Caroline Muegge-Vaughan
have kept forty dogs on their Peters Creek lot and trained them
during some winters. They have not had dogs on the property
since 1993. In the court's words:
Mr. Vaughan is an internationally noted
Arctic and Antarctic explorer. His income
now comes from Social Security and a small
pension from the University of Alaska. Mr.
Vaughan ran dogs in the 1991 and 1992
Iditarod. He characterized himself at that
time as the "oldest and slowest"musher in
the race. His racing activities were
supported by business sponsors and in-kind
contributions.
The court found that Carolyn Muegge-Vaughan participated in the
Iditarod as a hobby, made no money from her mushing activities,
and "received contributions of fish heads, Ziplock bags, jackets
and free shipping from sponsors."
The trial court's conclusion concerning the appellees'
uses was as follows:
None of the uses made by any of these
defendants were incompatible with
recreational and residential uses of the
land. The Andersons' use of their land has
been primarily residential and recreational.
Bed-and-breakfast rental usage is residential
and is fully compatible with and incidental
to residential uses. The Vaughans' use has
been primarily recreational. Their keeping
of dogs and training those dogs for races was
incidental to and compatible with
recreational or residential uses of the
property. Bomhoff's use has been
recreational and residential. His keeping of
dogs on the property has been incidental to
and compatible with those uses of the
property.
II. DISCUSSION
There are no state statutes or regulations that
directly govern the meaning of the terms "residential use" or
"recreational use"as they appear in the plat note.1 However,
there were definitions of these or similar terms in state land
disposal and planning regulations in existence when the
subdivision was created.
The disposal regulations contained the following
definitions:
"private recreation lands"means those lands
which because of location, physical features
or adjacent developments are chiefly valuable
as outdoor rural areas and may best be
utilized by private non-commercial develop
ment[.]
11 Alaska Administrative Code (AAC) 54.510(23).
"residential lands"means those lands which
because of location, physical features or
adjacent development may best be utilized for
single or multiple unit dwellings[.]
11 AAC 54.510(27). The land planning and classification regula
tions provided:
11 AAC 55.150. PRIVATE RECREATION LAND.
(a) Land classified private recreation is
land that, because of its rural location,
physical features, or adjacent development,
is suitable for private, low-density
recreational development. No land may be
classified private recreation until present
and potential public recreation needs in the
area have first been considered.
(b) The primary management goal is to
provide for private recreational use of rural
areas by allowing private recreational devel
opment to occur in an orderly fashion.
(c) Private recreation land is to be
used primarily for the construction of
recreational cabins, or hunting, fishing, or
recreational camps. Other uses must be
incidental to and compatible with the primary
use.
11 AAC 55.180. RESIDENTIAL LAND.
(a) Land classified residential is land
that, because of its physical features,
adjacent development, and its location on or
near an existing road, proposed road, or
navigable waterway, is suitable for single-
or multiple-family dwellings at medium to
high density provided that adequate on-site
or off-site services and facilities can be
developed for solid waste disposal,
wastewater disposal, and potable water
delivery.
(b) The primary management goal is to
provide for residential lands in areas where
services and facilities necessary for human
settlement exist or are likely to exist.
(c) Residential land is intended to be
used for residential purposes only, other
uses must be incidental to or compatible with
the primary use. (Repealed 1983.)
A regulation governing "homesite entry zoning"provided
for lot sizes not to exceed five acres restricted to "no more
than one single family residence per lot," but permitted
incidental uses and accessory structures as follows:
(b) Incidental uses that are conducted
from the home are permitted, including child
care, home crafts, sale of home-produced
items, and other similar home business
activities that employ only residents of the
home.
(c) Accessory structures are allowed
that are in conjunction with a permitted use.
11 AAC 91.130(b) and (c).
These disposal and planning regulations govern the
classification of lands by the state for use or disposition, but
they do not purport to control the uses of lands once they are
disposed of by the state. However, absent indications to the
contrary, it is reasonable to conclude that the terms in the plat
note that govern post-disposition land usage have essentially the
same meaning as the same or similar terms in the regulations.
The homesite zoning regulations govern post-disposition private
use of the lands to which the regulations apply, but it does not
appear that the regulations apply to appellees' Peters Creek
lots. Again, however, it seems reasonable to employ the
incidental use and accessory structure provisions in these
regulations to the residential usage of Peters Creek lots, since
they are of the same size and similar usage as homesite entry
lots.2
Drawing on the regulations, the term "residential use"
in the plat note embraces use for "single or multiple unit
dwellings"and other uses "incidental to or compatible with"such
use. 11 AAC 54.510(2), 11 AAC 55.180(c). Uses incidental to
residential use include "child care, home crafts, sale of home-
produced items, and other similar home business activities that
employ only residents of the home," 11 AAC 91.130(b), and
accessory structures dedicated to these uses are permitted. 11
AAC 91.130(c). The term "recreational use"encompasses use "for
the construction of recreational cabins, or hunting, fishing, or
recreational camps," and "[o]ther uses incidental to and
compatible with"those uses. 11 AAC 55.150.
The appellees' uses fall within these definitions.
Based on ample evidence, their dog raising and training
activities were found to be "recreational." Such commercial
overtones as these activities had were aptly described as
incidental to their recreational character.3 The bed-and-
breakfast usage by the Andersons can fairly be regarded as
incidental to residential use. Bed-and-breakfast businesses are
permissible in residential zones, with varying limitations.
E.g., Matanuska-Susitna Borough Code 17.40.540(A)(8) (1995); see
also, e.g., Anchorage Municipal Code 21.40.040(C)(8) (1996).
Since it is not contended that the Andersons' bed-and-breakfast
employs people who do not reside in the family home, the business
fits the definition of a permissible incidental use under 11 AAC
91.130(b). Further, the three cabins are "accessory structures"
in conjunction with a permitted use under 11 AAC 91.130(c).
Persson-Mokvist also contends that the court should
have entered a general declaration that plat note 21 is valid and
enforceable and that it prohibits all commercial uses of lots in
the subdivision. This contention lacks merit. The trial court
appropriately addressed whether the uses of the subdivision by
appellees violated the plat and found that they did not. No
other or further declaration was necessary or appropriate.
III. CONCLUSION
The judgment of the superior court is AFFIRMED.
_______________________________
1 The interpretation of the plat note is a question of
law. Questions of law are subject to de novo review. Cummings
v. Sea Lion Corp., 924 P.2d 1011, 1023 n.18 (Alaska 1996).
2 Since the subdivision lots may be used for multiple
unit dwellings, while homesite entry lots are restricted to
single units, the homesite entry regulations might properly be
viewed with liberality when applied to the Peters Creek lots.
3 Persson-Mokvist argues that large scale dog rearing and
training is not incidental to residential use because it is
unlike the incidental uses listed in 11 AAC 91.130(b) such as
child care or sale of home-produced items. This argument
misapprehends the nature of the incidental uses provision. The
provision permits certain commercial activities. This is not
relevant to the dog-related activities in this case, since they
were found to be primarily recreational. Further, the dog-
related activities are justified as a recreational use, rather
than as a residential use so the regulation defining incidents to
residential usage is not applicable.
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