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v. Fairbanks North Star Borough (1/28/00) sp-5234
Balough v. Fairbanks North Star Borough (1/28/00) sp-5234
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
LORRAINE BALOUGH and )
JEROME STEMPAK, ) Supreme Court No. S-8141
)
Appellants, ) Superior Court No.
) 4FA-93-2585 CI
v. )
) O P I N I O N
FAIRBANKS NORTH STAR BOROUGH, )
) [No. 5234 - January 28, 2000]
Appellee. )
)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Mary E. Greene, Judge.
Appearances: Robert John, Law Office of
Robert John, Fairbanks, for Appellants. Cynthia M. Klepaski,
Assistant Borough Attorney, and Ardith Lynch, Borough Attorney,
Fairbanks, for Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
COMPTON, Justice.
I. INTRODUCTION
Lorraine Balough and Jerome Stempak (collectively
"Balough") appeal a superior court judgment affirming the Fairbanks
Board of Adjustment's (BOA) decision denying Balough's junkyard
"nonconforming use"status.
Balough also appeals the superior court's judgment
granting to the Fairbanks North Star Borough (FNSB) summary
judgment on all of Balough's remaining claims.
We conclude that the judgment of the superior court
affirming the decision of the BOA must be reversed and remanded to
the BOA for further proceedings. We affirm the judgment dismissing
the direct civil action.
II. FACTS AND PROCEEDINGS
A. Facts
Lorraine Balough and Jerome Stempak own property in the
Goldstream Valley in the Fairbanks North Star Borough. [Fn. 1]
When Balough purchased the property it was zoned as General Use -
1 (GU-1). [Fn. 2] Since 1990 Lorraine and her son Michael have
used a portion of the property as a junkyard, pursuant to a license
issued to them by FNSB. Junkyards are a "permitted use"in GU-1
zones. [Fn. 3] Balough asserts that her property is not a
junkyard, but rather a recycling center. For the purposes of this
opinion, we refer to Balough's property as a junkyard.
In August 1992 FNSB Code Enforcement Officer Fred B. Rohn
notified Balough that she was in violation of FNSBCO 8.16.030 [Fn.
4] because her junkyard was not surrounded by a fence, nor was it
completely obscured from view. Balough immediately began
construction of a wood slab fence. A September snowfall forced
Balough to cease construction of the fence before it was completed.
According to Balough, she had expended more than $17,000 to bring
the junkyard into compliance before the early snowfall interrupted
her work. At that time temporary measures were taken at the
suggestion of Mr. Rohn to get Balough through the winter. She
invited Mr. Rohn to come out to her property and view the partially
completed fence. He viewed the property on a number of occasions.
In September 1992 Balough's neighbors Hunter and Carole
Judkins filed a rezoning application with the FNSB Department of
Community Planning (Department). [Fn. 5] The Judkins requested
that the north side of Nugget Loop be changed from GU-1 to Rural
Residential (RR). [Fn. 6] The Judkins requested that a total of
75.56 acres be rezoned. In their rezoning application, the Judkins
stated that the GU-1 zoning had not been a problem until
one neighbor allowed a junk yard to move in at
the site of the children's elementary school bus stop. . . . We
fear a potential tragedy in our neighborhood with abandoned
vehicles and appliances so accessible to young children seeking an
adventure.
The Judkins concluded their request by stating that, "[w]e
certainly hope that rezoning to Rural Residential will be
implemented without delay, to the benefit of the many families and
landowners of the Nugget Loop neighborhood."
The Department recommended that the Commission approve
the requested zone change. In a Staff Report addressed to the
Commission, the Department made the following findings of fact in
support of its recommendation:
1. This rezone does conform to the
Comprehensive Plan in that:
a. The area is designated Outskirt
Preferred Residential.
b. The rezone is an attempt to maintain
a healthy existing residential area and ensure that this area has
uses compatible with the existing, predominately residential use.
c. The rezone will help to ensure that
this existing residential area is infilled with only compatible
residential development.
2. This request will not jeopardize the
public health, safety, and welfare.
The Commission notified Nugget Loop residents that there
would be a public hearing held on November 20, 1992, regarding the
Judkins' rezoning request. The notification provided a space for
comments and the opportunity to attach a letter if a property owner
was unable to attend the public hearing; Balough attached such a
letter. In her letter, Balough stated that, "Mr. Dick Randolph
. . . who owns the intervening vacant lot between our two
properties . . . is not interested in rezoning and [told her] that
he would be happy to verify that by telephone." Balough requested
that when the Commission defines the rezoning, it exempt "the
triangular portion that includes the three pieces of property
belonging to Dick Randolph, Dr. Stempak and myself, and my
residence."
Numerous property owners, most of whom favored the
rezoning, testified at the public hearing before the Commission.
Robert Hutchison, Balough's husband, spoke against the rezoning.
He stated that he and Balough preferred to call the junkyard a
"recycling area." Further, Hutchison stated that "[a]s far as the
recycling area is concerned, that is a temporary thing, but we do
have it fenced." Hutchison did not request that the Commission
exclude his property from the rezoning.
Tina Zimmerman, Planner II for the Division of Planning
and Zoning, noted at the hearing that
[a]ny legal existing use . . . that is legally
existing when the rezone takes place will be grandfathered. But
the junkyard in question, as of today, is not in compliance
according to the code enforcement officer. That would have to be
brought into compliance and be a legally existing use to be
grandfathered if the Assembly adopts the rezone.
The Commission voted eight to zero to recommend that the
Borough Assembly approve the rezoning.
On January 14, 1993, the FNSB Assembly held a regular
assembly meeting to vote on the proposed rezoning. Hutchison spoke
before the Assembly. He stated that he had "no objection to the
rezone as such, but [he] request[ed] that [Balough's and his]
property there be exempted from this rezoning and that [their]
businesses which [they] have had in effect on [their] property be
granted grandfather rights." Hutchison also requested that
Randolph's property be exempt from the rezoning, although Randolph
did not testify before the Assembly. Numerous Nugget Loop
residents urged the Assembly to rezone the seventy-five acres at
issue.
Rex A. Nutter, Director of the Department of Community
Planning, presented a staff report to the Assembly. Nutter
recommended that Balough's property not be exempt from the rezone.
He also stated that "[a]ny use that is lawfully established at the
time of the effective date of the rezone may continue in accordance
with the non-conforming use portion, Title 18." Furthermore, when
asked whether the junkyard was in compliance, Nutter responded that
the junkyard was still under evaluation, but that it was the
Department's "tentative position that the junkyard is in compliance
with Title 8." He testified that
[The Department of Community Planning] code
enforcement officer was out there this week and as recent as today.
In their reading of the code which is Title 8, simply states that
[the junkyard] is required to be screened from view. And, for our
purposes, that property is -- the garbage, the trash, the vehicles,
whatever it is that's on the property, is screened from view
traveled way or adjoining property.
The Assembly approved the rezoning, with a vote of eleven
to zero. Balough's property was not exempted. The rezoning was
reduced to Ordinance No. 92-072. The ordinance became effective at
5:00 p.m. on January 15, 1993.
On January 28 Nutter, in his capacity as the Department
of Community Planning Director, sent Balough notification that her
lot "does have 'Grandfather Rights' under Chapter 18.56.000, [Fn.
7] Nonconforming (Grandfathered) Uses and Lots." On February 4 the
Judkins sent a letter to the Assembly, signed by forty Nugget Loop
residents, contesting the Planning and Zoning Commission's grant of
grandfather rights to Balough. The Judkins asserted that Balough's
junkyard was not in compliance with FNSBCO 8.16.030 because the
junkyard was not completely obscured from view, and because one
third of the fence surrounding the junkyard was less than eight
feet high. The Judkins and the neighbors who signed the letter
asked the Assembly to "reverse the decision of the planning and
zoning commission and deny grandfather rights to the junkyard due
to it's [sic] non-compliance [with] ordinance regulations."
Residents of Nugget Loop were notified that the FNSB
Assembly, sitting as the Board of Adjustment (BOA), [Fn. 8] would
hold a public hearing on March 25, 1993, to hear an appeal filed by
Philip Schad Jr., on behalf of Carol and Hunter Judkins, regarding
the decision to grant Balough grandfather rights, pursuant to
FNSBCO 18.56.000, to operate her junkyard. The notification stated
that "[a]ll interested persons shall be given the opportunity to
present testimony and exhibits. All exhibits used will become a
part of the record, and must be submitted to the Borough Clerk when
exhibit is introduced." At the appeal before the BOA, all those
who testified were sworn in.
Hunter Judkins testified first. The crux of his
testimony was that Balough should not have been granted grandfather
rights because the junkyard was not in compliance with either one
of the two requirements of FNSBCO 8.16.030. [Fn. 9] Carole Judkins
then testified and introduced photographs of the junkyard taken in
February and March 1993.
Nutter testified on behalf of the Commission. He stated
that "these people met the intent of the Code and if at such time
since that rezone they fall out of compliance through losing their
fence or things blowing away, they go in violation, they do not
lose their grandfather rights." Nutter further testified that he
had not measured the fence when he inspected it for compliance,
because he had been primarily concerned with whether the junkyard
was obscured from view. He had concluded that the Balough's
junkyard was obscured from view, and so it met the ordinance
requirements. Nutter also testified that he had not walked around
the perimeter of the junkyard. Hutchison appeared as a witness for
the Commission. He testified that on the day the Borough inspected
his property, the fence was eight feet high. Balough then
testified that on January 14, 1993, the fence was up and it was
sight-obscuring all of the way around the junkyard.
After Judkins and Nutter gave their closing remarks, the
BOA discussed whether the junkyard met the requirements of FNSBCO
8.16.030. Statements from BOA members included: "The fence hasn't
met two criteria. It has to be 8' tall and it has to completely
block your view." "There's nothing from the Planning Commission or
the owners of the property that shows any documentary evidence that
there was a continuous fence." The BOA voted seven to four in
favor of granting the Judkins' appeal, thereby reversing the
Commission's grant of grandfather rights to Balough.
On April 22 the Assembly, sitting as the BOA, held a
closed session and voted to rescind its action granting the
Judkins' appeal. They "remand[ed] the appeal back to the Planning
Department to provide measurements of the fence as of January 15
and to also provide the BOA with copies of the November pictures
and the video tape."
The BOA met in September to consider the new evidence
from the Planning Department, [Fn. 10] viewing a video from January
18, and pictures taken on November 2 and 10, January 13, and April
22. Balough's attorney Robert John addressed the BOA, arguing that
the FNSB's regulations governing recycling centers should apply
because Balough was operating a recycling center, not a junkyard.
John further argued that Balough "was in substantial compliance and
is making her best faith efforts in reliance on representations
from members of the Borough to try and get this thing into
compliance."Balough also testified. After considerable discussion
and disagreement among the BOA members, the BOA voted six to five
in favor of granting the Judkins' appeal, thereby reversing the
Commission and revoking Balough's grandfather rights.
In its findings of fact supporting its decision to deny
Balough grandfather rights, the BOA stated that there was
testimony that the wood fence [had] not been
completed on the west and south sides of the junk yard. There was
also testimony that the fence is not continuous and solid and that
the slab wood construction of the fence does not obscure the
contents of the junk yard from view.
Furthermore, the BOA found that
[o]n January the 15th, 1993, the last day of
the former General Use zone, the fence was at least 8 feet tall in
some places, but the northwest section was less than 8 feet tall.
Further, the fence did not completely obscure the view of the junk
yard from the road or from neighboring property.
In October Balough filed a complaint in the superior
court against FNSB, requesting declaratory relief, injunctive
relief, and damages. Balough's complaint requested both relief
from the BOA's decision as well as relief and damages pursuant to
42 U.S.C. sec. 1983 [Fn. 11] for violations of her federal and
state
constitutional rights to due process and equal protection of law,
and freedom from the unconstitutional taking of property. The
superior court converted all of Balough's claims, except her
Section 1983 claims, to an administrative appeal. The court noted
that the Section 1983 claims could be mooted out, and deemed it
"appropriate to stay those [claims] pending disposition of the
ultimate appeal." At the hearing, the court informed Balough's
attorney that, if he wanted the administrative appeal to be a de
novo trial, he would have to file a motion so requesting.
B. The Administrative Appeal
At oral argument on the administrative appeal, the
superior court made clear that the appeal was not a de novo trial,
because the agency record was complete. [Fn. 12] The court issued
a forty-eight page Memorandum Decision and Order, which concluded
that "[t]he Board of Adjustment's September 9, 1993, decision
denying grandfather rights for appellants' junkyard is affirmed."
The following is a synopsis of the court's pertinent findings:
1. "Both the Planning Commission and the
Assembly had substantial evidence before them to support approval
of rezoning the area from GU-1 to RR."
2. The rezoning action was not arbitrary
spot zoning.
3. FNSB did not err in failing to exclude
Balough's property from the rezone.
4. The BOA did not err in interpreting
FNSBCO 18.56.020 to require the junkyard to be in compliance with
the junkyard ordinance in order to obtain grandfather rights, and
there was substantial evidence to support the conclusion that the
junkyard was not in compliance.
5. FNSB did not deny Balough due process or
equal protection or take her property unconstitutionally.
6. Estoppel is not properly raised in this
administrative appeal.
7. FNSB is entitled to $2,000 in attorney's
fees and $156.50 in costs.
Balough appeals this order.
C. The Direct Civil Suit
Following its decision in the administrative appeal, the
superior court heard oral argument on Balough's Section 1983
claims. Balough had moved for summary judgment on the vested
rights issue and requested a preliminary injunction; FNSB had moved
to dismiss all of the claims remaining in Balough's complaint
following the court's resolution of the administrative appeal. In
a twenty-six page Memorandum Decision and Order, the superior court
granted FNSB summary judgment on all remaining counts of the
complaint.
The following is a synopsis of the court's pertinent
conclusions:
1. Because Balough attached materials
outside of the pleading to her memorandum in opposition to FNSB's
motion to dismiss, the motion to dismiss will be treated as a
motion for summary judgment.
2. Counts I - IV and VI of Balough's
complaint state a cause of action under Section 1983.
3. Count V, collateral estoppel, does not
state a cause of action under Section 1983, and will not be
considered.
4. Section 1983 claims can be barred by
collateral estoppel, and "[i]f the issues in the current action are
the same as those litigated before the FNSB Assembly, [BOA], and in
the administrative appeal, collateral estoppel should apply to
preclude Balough from relitigating the issues as part of the
Section 1983 claims."
5. In comparing the arguments discussed and
rejected in the administrative appeal and the Section 1983 claims
in Counts I through IV and Count VI of Balough's complaint, the
court found it "clear that there are no remaining questions of law
which would be determinative of the Section 1983 claims, [with the
possible exception of the vested rights issue]."
6. Balough showed no evidence "of a taking
for which [she] would be entitled to compensation under the federal
constitution."
7. Balough does not "have a 'vested'
property right in either GU-1 zoning or grandfather rights to a use
which did not comply with fencing requirements. [Balough is] not
entitled to summary judgment on [her] due process claims."
8. Balough did "not have vested property
rights that were taken by FNSB."
9. FNSB is entitled to $2,500 in attorney's
fees, and $2,623.12 in costs.[ [Fn. 13]]
The court denied Balough's motion for reconsideration of
her due process claim. Balough appeals the court's grant of
summary judgment to FNSB, and its denial of her motions for summary
judgment and injunctive relief.
III. DISCUSSION
A. Introduction
Balough has identified numerous points on appeal. She
appeals (1) the superior court's affirmation of the BOA's decision
on numerous grounds, three of which are constitutional; (2) the
court's grant of summary judgment to FNSB on all of her Section
1983 claims; (3) the court's decision to bifurcate the
administrative appeal and the Section 1983 civil suit; (4) the
court's decision not to hear the administrative appeal de novo; and
(5) the court's awards of attorney's fees. Balough's brief,
however, does not follow a logical breakdown of these issues and
instead addresses these points as if they arose out of the same
suit. Furthermore, Balough's brief discusses at least six
different constitutional claims. Some of these claims were
addressed and dismissed as a part of the administrative appeal,
while others were redundant Section 1983 claims. Balough does not
identify to this court whether she is appealing from the grant of
summary judgment to FNSB on the Section 1983 claims, or the
affirmation of the BOA's decision to deny her grandfather rights.
Additionally, she applies the same standard of review, independent
judgment, to all of her claims. We have attempted to break down
Balough's arguments into a coherent grouping of issues and discuss
each separately.
B. Standard of Review
When the superior court acts as an intermediate court of
appeal, this court does not defer to its decision. We will
independently review the merits of the administrative
determination. [Fn. 14] We review the findings of an
administrative agency to determine whether they are supported by
substantial evidence. Substantial evidence is "such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion."[Fn. 15] We have previously held that "judicial
review of zoning board decisions [both Planning Commission and
Board of Adjustment decisions] is narrow[,] and . . . a presumption
of validity is accorded those decisions."[Fn. 16] Where the
interpretation of a zoning ordinance presents only a question of
statutory construction which does not involve agency expertise or
the formulation of fundamental policies, we apply the independent
judgment standard of review. [Fn. 17] On the other hand, where the
agency's expertise or questions of fundamental policy are involved,
an agency's interpretation of a zoning ordinance should be reviewed
under the deferential "reasonable basis"standard and should be
accepted whenever reasonable. [Fn. 18] We review the superior
court's grant of summary judgment de novo. [Fn. 19] We will affirm
summary judgment if there are no genuine issues of material fact
and if the moving party is entitled to judgment as a matter of law.
[Fn. 20] The non-moving party is entitled to have the record
reviewed in the light most favorable to it and to have all
reasonable inferences drawn in its favor. [Fn. 21]
We review procedural decisions of the superior court for
abuse of discretion. [Fn. 22] On questions of law, we do not defer
to the lower court's decision, [Fn. 23] but rather "adopt the rule
of law which is most persuasive in light of precedent, reason, and
policy."[Fn. 24]
We review a trial court's award of attorney's fees for an
abuse of discretion. [Fn. 25] We will find that a trial court
abused its discretion when, after reviewing the whole record, we
are left with a definite and firm conviction that the trial court
erred in its ruling. [Fn. 26]
C. Did the Superior Court Abuse Its Discretion When It
Bifurcated Balough's Case into an Administrative Appeal
Limited to the Agency Record and a Separate Civil Suit
for Balough's Section 1983 Claims?
The superior court bifurcated Balough's Section 1983
claims from her claims relating to the BOA's decision to deny her
grandfather rights. In its decision regarding Balough's
administrative appeal, the superior court addressed five issues:
(1) whether the Borough Assembly had substantial evidence to
support the rezoning; (2) whether the rezoning was unconstitutional
spot zoning; (3) whether the Assembly erred in not exempting
Balough's property from the rezone; (4) whether the BOA had
substantial evidence to revoke Balough's grandfather rights; and
(5) whether the Assembly's or BOA's actions violated Balough's
rights to due process or equal protection of law, or amounted to an
unconstitutional taking. The court explicitly stated that Balough
could not raise estoppel in her administrative appeal.
In its decision regarding Balough's direct Section 1983
suit against FNSB, the superior court addressed: (1) whether
Balough stated a cause of action under 42 U.S.C. sec. 1983 in any
of
the six counts in her complaints; (2) whether the administrative
appeal decision should have precluded Balough's Section 1983
claims; (3) whether FNSB was entitled to summary judgment on the
merits on all of Balough's remaining claims; and (4) whether
Balough was entitled to summary judgment on her claim that she had
a vested right in the GU-1 zoning. The superior court declined to
address whether FNSB could be estopped from denying Balough
grandfather rights, because it concluded that her estoppel claim
did not state a cause of action under Section 1983. Balough
appeals virtually every determination made by the superior court.
In effect, Balough argues that the superior court abused
its discretion when it bifurcated her single civil suit into an
administrative appeal and a direct suit encompassing her Section
1983 claims, because "[a]ny direct challenge that [her] Complaint
presents to the FNSB Board of Adjustment's decision is intertwined
with her accompanying challenges to the constitutionality of the
FNSB grandfather-rights and zoning scheme and her civil-rights
claims to damages and other relief under 42 U.S.C. sec. 1983." The
court's decision to "bifurcate the administrative-appeal aspects of
the case so that part of the case then proceeded under an
administrative-appeal briefing schedule and the other part
proceeded under the Civil Rules . . . [was] not practical in view
of the intertwined nature of the various aspects of the case."
Balough urges this court to grant her a full trial de novo on the
administrative appeal aspects of her case. If not, Balough argues,
she will be denied her right to a jury trial.
1. Trial de novo
Balough cannot now assert that the superior court abused
its discretion in not granting her a full trial de novo on her
administrative appeal claims because she never moved the superior
court to do so. The superior court specifically told Balough that
if she wanted a trial de novo on her administrative appeal she
would have to file a motion so requesting. She never filed such a
motion. She did file a motion to supplement the agency record with
depositions. In that motion, Balough stated that "the Court has
expansive powers to supplement the record and to otherwise conduct
a trial de novo under Appellant Rule 609. Accordingly, under
Appellate Rule 210(c)(3), the Court has broad authority to grant
leave to file a supplemental excerpt." Thus, while Balough noted
that the superior court could conduct a trial de novo, Balough
merely requested that the court "exercise its power and grant [her]
leave to supplement the record with the referenced portions of
depositions." The court denied Balough's motion, and later
sanctioned her for referring to documents not in the agency record
in her brief and excerpt of record. At oral argument the court
again repeated its refusal to consider evidence outside of the
agency record, stating that it had "consistently refused"to
consider a partial de novo trial in the sense that the court takes
a look at new evidence. Because Balough failed to move the
superior court to hear her administrative appeal in a de novo
trial, and because the court denied all of her motions to
supplement the agency record because it believed the record was
"complete,"we conclude that it was not an abuse of discretion for
the superior court to limit Balough's administrative appeal to the
agency record.
2. Bifurcation of Balough's case
The superior court bifurcated the administrative aspects
of Balough's case from the Section 1983 claims, because it
concluded that "several of the claims [were] functionally
administrative appeals because they require the Court to consider
the propriety of agency determination, agency in the broadest
sense, including the Borough sitting as the Board of Adjustment."
The court stayed all proceedings regarding the Section 1983 claims
"pending the resolution of the [administrative] appeal."
We have previously held that "bifurcation of a trial is
generally within the discretion of a trial court, and a ruling on
this issue will not be reversed absent an abuse of that
discretion."[Fn. 27]
We have further stated that "'[a] claim is functionally
an administrative appeal if it requires the court to consider the
propriety of an agency determination'"[Fn. 28] and that "the key
question . . . is whether the claim challenges a prior
administrative decision."[Fn. 29] A BOA decision is an
administrative decision. [Fn. 30] An aspect of Balough's original
suit challenged the BOA's decision to revoke her grandfather
rights, requiring the court to look at the propriety of the BOA's
decision. It was not an abuse of discretion for the court to
conclude that part of her suit was functionally an administrative
appeal, and to bifurcate her claims accordingly. [Fn. 31]
Furthermore, the superior court did not eliminate Balough's Section
1983 claims when it converted part of her case to an administrative
appeal; rather, the court merely stayed those proceedings, and
later heard separate oral argument on the Section 1983 claims.
D. Issues Relating to the Board of Adjustment Proceedings
1. Is Balough's property being used as a "junkyard"
and therefore subject to the requirements of the junkyard
ordinance, FNSBCO 8.16.030?
Balough argues that her property is not a junkyard, but
a recycling center. Because she is operating a recycling center,
Balough asserts, her "property is not subject to the Borough's
junkyard ordinance." FNSB argues that regardless of the label
Balough puts on the use of her property, it fits the definition of
"junkyard."
The FNSBCO defines "junkyard"as "the use of more than
five hundred square feet of the yard of any lot or parcel for the
storage or keeping of junk."[Fn. 32] "Junk"is defined as
"dismantled or wrecked automobiles, aircraft, motor vehicles or
machinery, mobile homes or trailers; used appliances or furniture;
scrap building material . . . ."[Fn. 33] Hunter Judkins stated to
the Planning Commission that "there were probably more than 35
junked vehicles, appliances, [and] other things in [Balough's]
lot." He had stated similar facts to the BOA. Aside from
repeatedly referring to her property as a "recycling center,"
Balough has never offered any evidence to refute Judkins's
assertion that her property is a junkyard, i.e., that there were
more than thirty junked cars and other items fitting within the
definition of "junk"on her property. We conclude that the BOA had
substantial evidence to find that Balough's property is a junkyard
and, therefore, is subject to FNSBCO 8.16.030.
2. Is Balough required to comply with FNSBCO fencing
requirements?
Balough argues that "even if [her] property were a
junkyard, the point remains that at the time of the rezone from GU-
1 to RR, [she] was not required to comply with the requirements of
FNSBCO sec.18.50.130." Balough notes that the requirements of
FNSBCO
18.50.130 only apply to junkyards when they are conditional uses.
She claims that, because her junkyard was a permitted use in the
GU-1 zone and not a conditional use, her junkyard is "expressly
exempted from the junkyard requirements of the Zoning segment of
the FNSB Code Title 18." Therefore, Balough concludes, "it is
ludicrous to condition [her] grandfather rights on compliance with
the junkyard requirements of FNSBCO sec. 8.16.030, which is
contained
in the Health and Safety segment of the FNSB Code."
Balough's argument is not well taken. FNSB has never
attempted to enforce FNSBCO 18.50.130. Rather, all correspondence
and hearings regarding Balough's junkyard refer to Balough's
compliance, or lack of compliance, with FNSBCO 8.16.030. Balough
is correct in her assertion that FNSBCO 8.16.030 is contained
within the Health and Safety section of the FNSB Code of
Ordinances. But that is no indication that Title 8's definitions
of "junk"and "junkyard,"and its fencing requirements, do not
apply to junkyards that are permitted uses within a certain zoning
district. Rather, that fact suggests that the definitions and
fencing requirements apply to all junkyards, for health and safety
reasons, regardless of the zone in which they are located.
Balough also argues that requiring a permitted use
junkyard to comply with FNSBCO 8.16.030 renders superfluous the
requirements of FNSBCO 18.50.130, which apply only to conditional
use junkyards. While FNSBCO 18.50.130(C) repeats part of the
fencing requirements listed in FNSBCO 8.16.030, the ordinance puts
many additional requirements on junkyards operating under
conditional use permits, including: (1) the junkyard cannot be
within 500 feet of certain buildings; (2) the junkyard must have
"direct access from a major collector or arterial street"; (3) the
type of screen the junkyard owner anticipates using to obscure the
public view must be specified in the conditional use application;
and (4) "[a] drainage plan specifying the method of disposing of
surface runoff from the site shall be subject to the approval."
[Fn. 34] Clearly, the ordinance setting out specific standards for
conditional use junkyards would not be rendered superfluous by
requiring all junkyards to abide by the few requirements enumerated
by the Health and Safety title's junkyard ordinance.
Balough's argument that she was not required to comply
with FNSBCO 18.50.130, while correct, is irrelevant.
3. Is the Board of Adjustment's decision to deny
Balough grandfather rights supported by substantial evidence?
Deciding whether there is substantial evidence to support
the BOA's revocation of Balough's grandfather rights involves a
two-step process. First, this court must decide what requirements
Balough was required to meet for her junkyard to be considered a
nonconforming use within the RR zoning district. Second, the court
must decide whether she met those requirements.
a. Must Balough's junkyard have been in
compliance with FNSBCO 8.16.030 to be a nonconforming use?
FNSBCO 18.56.020 provides, in part, that
[a]ny nonconforming . . . use . . . which
existed lawfully prior to the effective date of the ordinance
codified in this title or any . . . use . . . which has become
nonconforming upon the adoption of the ordinance codified in this
title . . . may be continued, subject to the restrictions in this
chapter."[ [Fn. 35]]
Balough argues that her junkyard was a lawful use within
the GU-1 zone, and that therefore she met the requirements of
FNSBCO 18.56.020 and was wrongfully denied
nonconforming/grandfather status. Balough defines "lawful use"as
"an authorized type"of use. She argues that whether the junkyard
was a lawful use within the GU-1 zoning district is a completely
separate question from whether or not the junkyard was in
compliance with the regulations governing that use. If the "lawful
use"junkyard was not in compliance with the regulations governing
the operation of junkyards, Balough argues, FNSB cannot deny
grandfather rights; rather, it may only require her to bring the
junkyard into compliance.
FNSB argues that there is a difference between a "lawful
use"and a "permitted use." While a junkyard is a "permitted use"
within a GU-1 zoning district, FNSB argues, a junkyard is only a
"lawful use"if it is in compliance with the junkyard ordinance
(FNSBCO 8.16.030). Because Balough's junkyard was not in
compliance with the junkyard ordinance, FNSB argues, it was not a
lawful use, and therefore she was correctly denied grandfather
rights.
The crux of the issue is this: Does the phrase "existed
lawfully prior to the effective date,"contained within FNSBCO
18.56.020, mean that the junkyard need only have been an authorized
use in the GU-1 zoning district in order to be considered a
nonconforming use within the RR zoning district, or does it mean
that the junkyard must have been in complete compliance with all
FNSB code ordinances as of January 15, 1993, the day the Borough
Assembly rezoned the area from GU-1 to RR?
This presents a question to which we apply our
independent judgment since the issue now addressed is a "pure
question[] of statutory construction which do[es] not involve
agency expertise."[Fn. 36] We conclude that for a junkyard to be
a nonconforming use under FNSBCO 18.56.020, it must have existed as
a lawful use prior to the effective date, or adoption, of the
ordinance which declared the use no longer lawful. Whether a use
is a lawful use in the first instance, and whether it is a
permitted use once its lawfulness is established, are separate
questions. A junkyard is a lawful use under GU-1 zoning. It is a
non-conforming use under RR zoning. Yet to be lawful, both
permitted junkyards under GU-1 and nonconforming junkyards under RR
must comply with FNSBCO 8.16.030, which provides that junkyards
"shall [not] be established or continued"unless certain conditions
are met. (Emphasis added.) The terms "permitted"and "lawful"are
not one and the same; the FNSB Code does not use the terms
interchangeably. Rather, the term "lawful"is used in both the
definitions of nonconforming use and permitted use. "Lawful,"
therefore, could not merely mean "permitted,"without rendering the
definition section of the Code tautological, i.e., by defining a
lawful use as a use which is lawful.
FNSB argues that interpreting FNSBCO 18.56.020 to require
compliance with the entire code is consistent with the generally
accepted rule that "the illegality of a prior use will result in a
denial of protected status for the use under a nonconforming use
exception."[Fn. 37] There is a split among jurisdictions
regarding how strictly courts should apply this general rule.
"The diversity of opinion arises as to just what renders
a pre-existing use unlawful."[Fn. 38] Some courts have concluded
that "only a noncompliance with an ordinance which regulates the
use of land will disqualify an individual's property from attaining
the status of a legal nonconforming use."[Fn. 39] Other courts,
however, strictly apply the general rule and hold that any
contravention of an ordinance, whether or not the ordinance relates
to the land, is sufficient to deny nonconforming status. [Fn. 40]
In this case, the ordinance requiring junkyards to meet
certain requirements regulates the use of that land. Thus, for
Balough's junkyard to become a grandfathered nonconforming use, it
must have been in compliance with FNSBCO 8.16.030 on January 15,
1993. However, that provision cannot be read in isolation. By its
terms the ordinance contemplates the establishment or continuation
of a junkyard. In other words, it contemplates that if a junkyard
is not operating in compliance with its provisions, the junkyard
will not be permitted to continue unless it is brought into
compliance. Thus, while the ordinance relates in fact to the use
of the land and is not merely a licensing ordinance, that does not
end the inquiry. Balough's noncompliance with the junkyard
ordinance does not automatically lead to the conclusion that her
junkyard was unlawful and hence not entitled to protection under
FNSBCO 18.56.020. If a property owner is using his or her property
for a lawful use, but is not in compliance with regulations
covering that use, due process requires that zoning boards assess
the immediate prospect of compliance before denying nonconforming
use status.
Next we consider whether Balough was operating her
junkyard in compliance when FNSB changed the zoning. After that we
look to whether due process required that she get a chance to bring
the junkyard into compliance before losing nonconforming use
status.
b. Did the Board of Adjustment have substantial
evidence to conclude that the junkyard did not comply with FNSBCO
8.16.030 on January 15, 1993?
The BOA reached the following conclusions:
1. The Board concludes that for a use to be
a lawful use on the date of a rezone, the use must comply with
"all of the applicable use regulations in the zoning district"
where the property is located. FNSB 18.06.010.B.150. The Board
interprets "all of the applicable use regulations"to mean that the
owners were required to comply with the junkyard regulations under
FNSB 8.16 in order to qualify as a conforming use under Title 18 of
the Borough Code.
2. The junkyard did not comply with FNSB
8.16.030, an applicable use regulation in the General Use zone, on
January 15, 1993, the effective date of the rezone. On January 15,
1993, the junkyard was not a conforming use under FNSB
18.06.010.B.150. A use which was not a conforming use on the date
of a rezone does not have grandfather rights. FNSB 18.56.020.
3. The junkyard did not exist lawfully prior
to January 15, 1993, the effective date of the rezone.
Junkyards are not lawful uses in RR zoning districts. As
discussed above, for a junkyard to be a nonconforming use in a RR
zoning district means that the junkyard may continue operating even
though there has been a zoning change and junkyards are no longer
lawful. But it may only do so if it lawfully existed in the GU-1
district. The BOA concluded that for a junkyard to have lawfully
existed in the GU-1 district, it must have been in compliance with
FNSBCO 8.16.030. The BOA thus had to determine whether Balough's
fence was in compliance with those junkyard regulations in order to
determine whether she was properly granted nonconforming use
(grandfather) status. It concluded that she had not been in
compliance and therefore denied her nonconforming use status.
FNSBCO 8.16.030 states that
No junkyard or auto wrecking yard shall
be established or continued unless such junkyard or auto wrecking
yard is completely obscured from view of any traveled or occupied
location within five hundred feet from any boundary of the junkyard
or auto wrecking yard, within a building or within a continuous
solid fence no less than eight feet in height. The fence may be of
evergreen planting or other natural planting or topography of
sufficient density to provide a year-round screen.
The BOA's conclusion that Balough's junkyard did not comply with
the requirements of FNSBCO 8.16.030 was based on the following
facts: (1) "[t]he wooden fence [had] not been completed on the west
and south sides of the junkyard"; (2) the fence was not continuous;
(3) the fence did not completely obscure the junkyard from view;
(4) the vegetation on the west side of the fence did not obscure
the junkyard from view; and (5) the fence was less than eight feet
in height in some places.
We conclude that the BOA had substantial evidence to find
that Balough's junkyard did not comply with the junkyard ordinance.
We interpret the ordinance to mean that Balough's junkyard would be
in compliance if it met any one of three requirements: [Fn. 41] (1)
the junkyard is completely obscured from view; (2) the junkyard is
contained within a building; or (3) the junkyard is contained
within a continuous solid fence no less than eight feet in height.
[Fn. 42] The BOA had substantial evidence to conclude that
Balough's junkyard met none of these three requirements. First,
neighbors testified that the junkyard was not completely obscured
from view. Second, the junkyard is not contained within a building.
Third, the BOA heard testimony that the fence surrounding the
junkyard was not continuous, and also testimony that the fence was
not eight feet in height in all places. Although Balough testified
that the fence was eight feet high in all places on January 15,
1993, and Nutter testified that he felt that the junkyard was
completely obscured from view, reasonable minds could still
conclude that the testimony of the neighbors, the photographs, and
the video tape were more persuasive. Specifically, the BOA could
reasonably have concluded that Balough's testimony was less
credible than the neighbors, and that, because Nutter did not walk
the perimeter of the junkyard and closely examine the fence, his
testimony should be given less weight. Looking at the agency
record as a whole, and giving the BOA the necessary deference, we
conclude that the BOA had substantial evidence to conclude that
Balough's junkyard did not conform with any of the three
requirements set out in FNSBCO 8.16.030, and, therefore, should not
be granted nonconforming use status as it then stood.
E. Balough's State and Federal Constitutional Claims
1. Procedural due process claims pertaining to the
Borough Assembly's passage of rezoning and the Board of
Adjustment's denial of nonconforming use status.
Although Balough raises numerous claims under the federal
and state constitutions, we first address her claim that FNSB's
denial of nonconforming use status for her junkyard deprived her of
property without due process of law in contravention of article I,
section 7 of the Alaska Constitution. [Fn. 43]
Black's Law Dictionary defines the phrase "vested rights"
as
rights which have so completely and definitely
accrued to or settled in a person that they are not subject to be
defeated or canceled by the act of any other private person, and
which it is right and equitable that the government should
recognize and protect, as being lawful in themselves, and settled
according to the then current rules of law, and of which the
individual could not be deprived arbitrarily without injustice, or
of which he could not justly be deprived otherwise than by the
established methods of procedure and for the public welfare.[ [Fn.
44]]
This court has previously held that "[v]ested property rights are
protected against state action by the provision of the Fourteenth
Amendment of the Constitution of the United States and by Section
7 of Article I of our state constitution."[Fn. 45] This court has
further stated that the term "vested right"is "conclusory -- a
right is vested when it has been so far perfected that it cannot be
taken away by statute."[Fn. 46] We have also held that a person
can have a vested property right despite a zoning change if that
person has a nonconforming use. In Earth Movers of Fairbanks, Inc.
v. Fairbanks North Star Borough, [Fn. 47] we stated that
A nonconforming use has been defined as a use
which lawfully existed prior to the enactment of a zoning
ordinance, and which is maintained after the effective date of the
ordinance, although it does not comply with the zoning restrictions
applicable to the area in which it is situated. Such a use has
also been described as a vested property right that zoning
ordinances generally may not abrogate.
Balough argues that she had a "vested right"in the
zoning classification as it existed at the time she started her
junkyard, and claims to a have a "vested right"in operating a
junkyard on her property, because she purchased the property in
reliance on the GU-1 zoning and invested significant time, effort
and expenditures into the junkyard. She cites to Nemmers v. City
of Dubuque [Fn. 48] and Nasierowski Brothers Investment Co. v. City
of Sterling Heights [Fn. 49] in support of her argument that,
because she invested significant time, effort and expenditures, she
had a vested right in operating her junkyard. Both of these cases
are easily distinguishable from the instant case. [Fn. 50] In
quoting Underwood v. State, Balough argues that "the Court
recognized . . . that individuals do have vested rights in 'real
property situations in which the complaining party indisputably
possess[es] property rights in specific land.'"[Fn. 51] Balough
cites New York authority for the proposition that "the existence of
an actual yet curable violation -- such as the fencing violations
alleged by FNSB in this case -- do not suffice to prevent a vested
right from accruing when the use at issue actually occurred prior
to the rezone." Finally, Balough cites Kohl v. LeGoullon [Fn. 52]
to support her assertion that "a land-use remedy must be consistent
with the violation and must not impose any greater restriction than
is necessary to protect persons from the violation." FNSB,
however, argues that Balough did not have a vested right because
she never lawfully established a nonconforming use prior to January
15, 1993.
Although Kohl is distinguishable from the instant case
because it involved restrictive covenants and not zoning
ordinances, Kohl nonetheless contains language which is relevant to
our inquiry. We observed that an "injunction should always be so
worded as not to impose on the defendant any greater restriction
than is necessary to protect the plaintiff from the injury of which
he complains."[Fn. 53] We addressed what part of a house would
have to be removed in order to comply with a setback covenant,
stating that "[t]he Legoullons validly complain of a horizontal
violation. The superior court erred by ordering a vertical
remedy."[Fn. 54] Not all of the structure subject to removal
under the challenged order offended the setback covenant. To fully
comply with the setback restriction, the Kohls needed only to
remove that portion of their house above the third floor and within
twenty-five feet of the property line. Here, as in Kohl, bringing
the junkyard into compliance now would remove the barrier to its
being a lawful permitted use in the GU-1 zone, which is what
Balough was attempting to do when the use became nonconforming
through the rezoning process.
Balough has a vested property right in her junkyard,
since it was a lawful use within the GU-1 zoning district, and only
became a nonconforming use within the RR district. [Fn. 55] It was
at the time of rezoning that Balough's vested right in operating
her junkyard could not be denied her without due process of law.
[Fn. 56]
Balough argues that this court should not apply a
"formalistic approach"to evaluating whether she has a vested right
in operating a junkyard on her property. She asserts that "where
the use at issue is in fact in existence on the date of a rezone,
but there is a lack of strict compliance with regulations governing
one engaging in such use, a vested right will nevertheless be found
where the noncompliance is capable of being remedied." She
supports this argument by citing Platt v. Murdock [Fn. 57] and
Drysdale v. Beachnau. [Fn. 58] Because of its facts Platt is not
helpful. Drysdale, however, presents facts similar to the instant
case. A dump was operating in violation of a county health
regulation, which was passed in 1948. The dump was still in
violation when the rezoning was passed in 1954. [Fn. 59] Using
language that supports Balough's argument, the court concluded that
it did not believe that "a violation of a provision of a regulatory
ordinance necessarily destroys the lawfulness of the basic use
where compliance with the regulation can be had on demand and where
such compliance actually follows."[Fn. 60] The decision in
Drysdale rests on the factual findings of the superior court, which
included: (1) that the defendant received no notice of
noncompliance prior to 1957 (three years after the rezoning), even
though the health regulations were passed in 1948; (2) that "one of
the problems of the health department is the disposal of garbage;
(3) that the landfill is the best method outside cities; and (4)
that the landfill of defendants is the best operated one of the
[three] in Ingham county."[Fn. 61] Although Balough's case is
distinguishable on its facts because she had notice of
noncompliance prior to the rezoning, Balough's argument is
persuasive.
Balough's junkyard was not operating in compliance with
the FNSB code of ordinances, a circumstance Balough was attempting
to rectify when the rezoning was adopted. It was not until after
the rezoning and the zoning administrator's decision to grant
Balough grandfather rights that some residents appealed and the
Board found the administrator's decision wanting. It was only then
that Balough learned that her attempt at compliance fell short of
what was required. Nonetheless, Balough was given no opportunity
to proceed with her attempted compliance. No evidence was offered
that she would not or could not comply with the ordinance, after
the BOA overruled the decision of the zoning administrator. Having
been given no opportunity to remedy the deficiencies in her
attempted compliance, Balough did not receive all the process to
which she was due.
2. Substantive due process claims pertaining to the
Borough Assembly's passage of the rezoning.
Balough claims that the Borough Assembly violated her
right to substantive due process "concern[ing] the validity of an
enactment of a legislative body, rather than a decision of a zoning
board."[Fn. 62] We, therefore, should independently consider the
legal conclusions which led the superior court to reject Balough's
claims that the ordinance is invalid and uphold the superior
court's findings of fact unless they are "clearly erroneous."[Fn.
63]
Article I, section 7 of the Alaska Constitution states
that "[n]o person shall be deprived of life, liberty, or property,
without due process of law."[Fn. 64] We have stated that
[s]ubstantive due process is denied when a
legislative enactment has no reasonable relationship to a
legitimate governmental purpose. . . . The constitutional
guarantee of substantive due process assures only that a
legislative body's decision is not arbitrary but instead based upon
some rational policy.[ [Fn. 65]]
The burden of demonstrating that there is no rational basis for the
challenged legislation is on the party claiming to have been denied
substantive due process. [Fn. 66] Furthermore, this burden is a
heavy one, "for if any conceivable legitimate public policy for the
enactment is apparent on its face or is offered by those defending
the enactment, the opponents of the measure must disprove the
factual basis for such a justification."[Fn. 67] When we inquire
into arbitrariness, we must begin "with the presumption that the
action of the legislature is proper."[Fn. 68]
a. Did the Borough Assembly engage in unconstitutional
"spot zoning"when it rezoned the seventy-five acres in Nugget
Loop? [Fn. 69]
Balough argues that the Borough Assembly's decision to
rezone the seventy-five acres at issue from GU-1 to RR was
constitutionally impermissible spot zoning. Specifically, Balough
argues that "the rezone itself was motivated by a discriminatory
animus and was but a blatant attempt to deprive [her] of the
existing use of [her] property in order to benefit the persons
initiating the rezone." Balough's claim of spot zoning essentially
alleges that the Borough Assembly violated her rights to
substantive due process because it acted arbitrarily and did not
have a reasonable basis for the rezoning. FNSB, however, argues
that the Borough Assembly's decision to rezone does not fit the
definition of "spot zoning."
We have stated that "the 'classic' definition of spot
zoning is 'the process of singling out a small parcel of land for
a use classification totally different from that of the surrounding
area, for the benefit of the owner of such property and to the
detriment of other owners.'"[Fn. 70] In Griswold v. City of
Homer, this court stated that it would consider the following three
factors in determining whether a zoning ordinance constituted
unconstitutional spot zoning: "(1) the consistency of the amendment
with the comprehensive plan; (2) the benefits and detriments of the
amendment to the owners, adjacent landowners, and community; and
(3) the size of the area 'rezoned.'"[Fn. 71]
We conclude that Balough did not allege facts that amount
to a prima facie case of spot zoning. Balough's brief does not
address any of the factors that this court stated were necessary in
determining whether an ordinance constitutes unconstitutional spot
zoning. Rather, Balough's brief makes only conclusory statements
regarding the Borough Assembly's decision to rezone the seventy-
five acres. As the extensive discussion of spot zoning in Griswold
demonstrates, whether an ordinance is unconstitutional spot zoning
is case-specific. [Fn. 72] Balough's brief is devoid of any
evidence to support her claim that the Borough Assembly acted in an
unconstitutionally arbitrary way. Specifically, Balough never
addressed whether the Borough Assembly's decision to rezone was
consistent with FNSB's comprehensive plan, whether the rezoning
unfairly benefitted a private owner, or whether the size of the
area rezoned did, or did not, suggest spot zoning. [Fn. 73]
Additionally, pursuant to the spot zoning analysis set out in
Griswold, Balough's one-sentence assertion that the Borough
Assembly acted with "discriminatory animus"is irrelevant to a
substantive due process claim that the Assembly engaged in spot
zoning. [Fn. 74]
b. Did the Borough Assembly violate Balough's
right to substantive due process when it refused to exempt her
property from the rezoning?
Balough notes that it is FNSB's frequent practice to
exclude property on the periphery of the rezoning upon the owner's
request. Therefore, Balough concludes, "the Borough's arbitrary
failure to exclude [her] property from the rezone effects a denial
of due process." Balough cites State v. Enserch Alaska
Construction, Inc. [Fn. 75] in support of her contention.
Balough's argument is not persuasive. First, as she
acknowledges, there is no provision of the FNSB Code concerning
rezoning exemptions. Second, this court's decision in Enserch
addresses the necessary requirements for stating a claim under the
Equal Protection Clause of the Alaska Constitution; it does not
address due process. [Fn. 76] Third, Balough's argument that the
Borough Assembly acted arbitrarily in refusing to exclude her
property from the rezoning, and thus denied her due process, is
seemingly based on Nutter's affirmative response to the question:
"[Is Balough's property located in an area] where the decision-
making body would tend to exempt the property from a rezone?"
Specifically, Nutter responded, "[i]f any property were to be
excluded, [Balough's property] would be the condition that they
would -- they would consider it."
Balough fails to acknowledge that Nutter testified before
the Borough Assembly in opposition to exempting Balough's property
from the rezoning. Nutter stated that he "believe[d] at least from
the zoning department's position, [that] protection of our
neighborhood should be [the Assembly's] top priority. And [he was]
not inclined to want to see [Balough's] property excluded from the
rezone." Nutter based his opinion on the notion that the seventy-
five acres of land at issue was in a residential area and while
"certain types of commercial uses are not inappropriate,"they
detract from property values.
In sum, no FNSB ordinance or state statute requires a
zoning commission to exempt property from a rezoning upon a
property owner's request. Nor did Balough offer any evidence that
the Borough Assembly's actions were unreasonably arbitrary.
Balough, therefore, failed to meet her burden of proving that the
Borough Assembly's refusal to exempt her property had "no
reasonable relationship to a legitimate governmental purpose."[Fn.
77]
3. Did the Borough Assembly's rezoning decision, and
the Board of Adjustment's subsequent denial of grandfather rights,
constitute an unconstitutional taking of Balough's property?
Article I, section 18 of the Alaska Constitution
provides: "Private property shall not be taken or damaged for
public use without just compensation."[Fn. 78] In recognizing
United States Supreme Court precedent, this court has noted that
there are two classes of per se takings: "(1) cases of physical
invasion and (2) cases where a regulation denies a landowner of all
economically feasible use of the property."[Fn. 79] When a "case
does not fall into either of these categories, courts must engage
in a case-specific inquiry to determine whether governmental action
effects a taking."[Fn. 80] Factors that a court should consider
in making this determination include: "(1) the character of the
governmental action; (2) its economic impact; and (3) its
interference with reasonable investment-backed expectations."[Fn.
81] In addition, we have stated that "[t]he legitimacy of the
interest advanced by the regulation or land-use decision is also
relevant to this inquiry."[Fn. 82]
Balough argues that
FNSB's actions have substantially impaired the
marketability of [her] property and have otherwise abridged the
economic advantages of ownership and the opportunities and rewards
[her] ingenious abilities and resources would have produced if the
property were to be utilized as [she] reasonably expected and
intended when she purchased the property and made subsequent
expenditures toward that end.
While the BOA's decision to deny Balough grandfather rights would
terminate her right to use her property as a junkyard, the decision
did leave her with economically feasible use of her property.
Presumably, Balough could sell her property to someone who wishes
to build a house on it, or use it in any other manner permitted in
the RR zoning district. [Fn. 83] Balough herself does not seem to
be claiming that she has no economically feasible use for her land;
rather, she argues that the BOA's decision "substantially impaired
the marketability"of her property, though she presented no
evidence to support her assertion.
Even though the BOA's actions did not constitute a per se
taking, Balough could still be entitled to compensation if the
BOA's action amounted to a taking based on the three-part analysis
articulated above. Balough does not address the three factors used
to determine whether a government action constitutes a taking even
if there is no per se taking.
First, Balough's brief is unclear as to exactly what
government action she feels amounted to a taking. Based on the
case law she cites, Balough appears to be arguing that the Borough
Assembly's decision to rezone, thus eliminating junkyards as a
permitted use, constituted a taking. The Assembly's rezoning
action was a legitimate government action, consistent with FNSB's
comprehensive zoning plan. The Assembly rezoned Nugget Loop to RR
in response to neighbors' concerns about safety and aesthetics.
Second, any negative economic impact of the rezoning seems solely
concentrated in Balough's fence-building efforts. Whether her
property was located in a RR zoning district or a GU-1 zoning
district, however, Balough would be required to obscure the
junkyard from view. The Assembly's rezoning decision, therefore,
did not create the costs she incurred when building her fence.
Lastly, Balough only asserted that she purchased the property in
order to operate a junkyard after she had filed suit against FNSB.
[Fn. 84] Prior to her deposition, however, Balough had never
alleged to have bought the property for the purpose of storing
junked cars. In fact, her husband told the Borough Assembly that
the junkyard "was only temporary; that [he] did not intend to turn
it into a junkyard."
Because the Assembly's action did not amount to a per se
taking of Balough's property, and because application of the three
factors articulated in Sandberg does not reveal a taking, we
conclude that Balough was not a victim of an unconstitutional
taking.
4. Was it a violation of Balough's right to due
process of law that the Borough Assembly sat as the Board of
Adjustment?
Due process requirements apply in administrative
proceedings.
[A] fair trial in a fair tribunal is a basic
requirement of due process. This applies to administrative
agencies which adjudicate as well as to courts. Not only is a
biased decision maker constitutionally unacceptable[,] but our
system of law has always endeavored to prevent even the probability
of unfairness.[ [Fn. 85]]
In Keiner v. City of Anchorage, we stated that the
Anchorage board of adjustment did not deny Keiner due process
because
The board made its findings only after due
notice and full opportunity to be heard; the conduct of the hearing
was consistent with the essentials of a fair trial; there is no
assertion that the board was anything but impartial; and a complete
record of the proceedings was kept so that the reviewing court was
able to determine that there was no substantial failure to observe
applicable rules of law and procedure, and that in all other
respects Keiner was afforded a fair hearing.[ [Fn. 86]]
The most plausible argument that Balough was denied due
process is that the BOA members were not impartial. Balough had
due notice and a full and fair opportunity to be heard, and those
who testified before the BOA were sworn in. If, however, the BOA
was not a neutral body, Balough's right to due process was
violated. A reading of the Assembly transcripts reveals potential
biases of Assembly members, who later sat on the BOA. Balough,
however, does not make this argument. Balough's only argument that
the BOA was not impartial pertains exclusively to Assembly Member
Therrien's alleged conflict of interest, which we discuss in the
following subsection. Instead, Balough argues that her due process
rights were violated because the Borough Assembly wore three hats
when it: (1) passed the grandfather rights ordinance; (2) rezoned
the seventy-five-acre parcel of land; and (3) sat as the BOA and
rendered the decision revoking Balough's grandfather rights. She
states that "the broad, unrestrained -- essentially political --
discretion granted to the Assembly/Board of Adjustment is such so
as to itself constitute a violation of due process." Balough also
argues that the Assembly should not be involved in rezoning
decisions because such decisions are quasi-judicial, and the
Assembly is not trained in the law. [Fn. 87]
Balough's argument that the BOA violated her rights to
due process, absent an allegation of partiality, is unconvincing.
First, the Borough Assembly sat as a legislative body
when it enacted both the grandfather rights ordinance and the
ordinance that resulted in the rezoning of the seventy-five-acre
parcel. [Fn. 88] In Griswold we stated that "[w]e have repeatedly
held that it is the role of elected representatives rather than the
courts to decide whether a particular statute or ordinance is a
wise one."[Fn. 89] The Borough Assembly, therefore, was acting in
its proper legislative capacity when it enacted FNSBCO 18.56.020,
and when it rezoned the seventy-five-acre parcel within the FNSB as
RR. [Fn. 90]
Second, the Borough Assembly properly sat as the BOA when
it revoked Balough's grandfather rights. [Fn. 91] The BOA gave
Balough notice of the hearing and the right to be heard; both she
and her attorney spoke at the hearing; and the BOA voted to and did
consider a letter and photographs written by her attorney to the
BOA. Additionally, while the BOA and the Borough Assembly share
the same members, the BOA was not reviewing a decision by the
Borough Assembly; rather, the BOA was hearing an appeal from a
decision of the Department of Community Planning. The BOA had no
input into the Department's decision to grant Balough grandfather
rights, and, therefore, no appearance of impropriety existed when
the BOA reviewed the Department's decision. The mere fact that the
BOA comprised the same members as the Borough Assembly does not
amount to a denial of due process.
5. Did Assembly Member Therrien's participation in the
rezoning and Board of Adjustment hearing amount to a denial of
Balough's due process rights?
Balough argues that Assembly Member Therrien had an
actual conflict of interest; thus her participation in the rezoning
decision and in the subsequent decision to deny Balough grandfather
rights amounted to a denial of Balough's right to due process.
Balough cites Griswold in support of her assertion. Furthermore,
Balough argues that "fundamental fairness and professional ethics"
required Therrien to refrain from participating in the decision
making process.
During the January 14, 1993, Assembly meeting, Therrien
told the Chair, "I think I might have to declare a conflict of
interest because I represent several of the parties in this area
and I feel that I should abstain. Not necessarily with regard to
this, but I represent at least three of the people and I think it
would be more appropriate [to abstain]." The Chair asked Therrien
whether she had ever represented them on issues or matters relating
to the rezoning. Upon Therrien's negative reply, the Chair stated
that he "[did not] find that [Therrien had] a conflict of
interest." Neither Balough or her attorney objected to Therrien's
participation in the Assembly's rezoning vote, nor did they object
to her participating as a member of the BOA in the decision to deny
Balough grandfather rights. Balough's failure to object to
Therrien's participation in the Assembly meeting or the BOA hearing
effectively waives her right to raise such an objection on appeal.
F. Balough's Estoppel Claims
Balough argues that the superior court erred when it
refused to consider her estoppel claim as a part of her
administrative appeal and that the court "compounded its error by
dismissing [her] estoppel claim from the direct-civil-action aspect
of the case." Balough further asserts that the superior court
created a situation where, upon "bifurcating the case[,] certain
components of the Complaint [were] made to vanish into thin air."
Balough's estoppel claim is based on her assertion that
she detrimentally relied on FNSB's representations:
Balough clearly expended substantial sums and
time in operating the property for several years as a junkyard, an
authorized use under the prior zoning. Moreover, during 1993,
Balough made yet further expenditures at the request and in
reliance on FNSB's representations that the fencing should be made
more substantial. When the unprecedented early and heavy snowfall
occurred late that summer and prevented completion of the fencing
until the following spring, Balough was informed by the FNSB's
representative, Fred Rohn, that it would be acceptable for her to
construct temporary fencing to comply with the ordinance and then
complete the fencing in the Spring of 1992, thus remaining in
compliance with the code all the while. Balough, in good faith,
relied on FNSB's representations.
The best that can be said for Balough's estoppel claim is
that she was told she could erect temporary fencing until spring,
when she could complete permanent fencing. This seasonal reprieve
was cut short by the successful rezoning effort, thereby depriving
Balough of the opportunity to cure she had been promised. Since
this argument is the essence of Balough's due process claim which
we have determined in Balough's favor, Balough's estoppel claims
are subsumed within the due process claim. We need not separately
address the estoppel claims, since any error in failing to consider
them is harmless.
G. Issues Relating to Balough's Direct Civil Action
In the administrative appeal, the superior court
concluded, based on the agency record, that (1) the Assembly's
rezoning decision was not unconstitutional spot zoning; (2) the
Assembly did not deny Balough due process of law; (3) the Assembly
did not deny Balough equal protection of law; and (4) FNSB did not
unconstitutionally take Balough's property. The superior court
then used its conclusions in the administrative appeal to
collaterally estop Balough's Section 1983 claims. The court
concluded that (1) its decision in the administrative appeal was a
final decision; (2) Balough had a full and fair opportunity to
litigate the constitutional issues; and (3) all of Balough's
Section 1983 claims were actually litigated and decided in the
administrative appeal, with the possible exception of Balough's
vested rights argument. The court discussed this last issue more
fully than it had in its discussion of the administrative appeal.
Balough argues that the court erred in precluding her Section 1983
claims based on the court's decision in the administrative appeal.
In Diedrich v. City of Ketchikan, [Fn. 92] this court
discussed Eilrich v. Remans, [Fn. 93] in which the court concluded
that Eilrich's Section 1983 claims were barred by a prior
unreviewed administrative proceeding. Applying Eilrich, we
concluded that Diedrich was precluded from bringing his Section
1983 claims in a separate suit after his administrative appeal was
dismissed, because he "was afforded ample opportunity to litigate
his termination before the Board."[Fn. 94] "Inherent in our
conclusion[,]"we stated, "is our rejection of Diedrich's arguments
that the Board was not a neutral body, and that the Board lacked
the expertise to decide breach of contract and civil rights
claims."[Fn. 95]
This case presents even stronger reasons for precluding
Balough from bringing her Section 1983 claims in a separate suit.
In Diedrich and Eilrich the courts gave preclusive effect to
unreviewed agency decisions, concluding that a litigant had a fair
and full opportunity to be heard before the administrative boards.
Here, Balough had judicial review of her constitutional claims by
the superior court. Balough's brief incorrectly argues that the
superior court gave preclusive effect to the BOA's decision.
Balough is focusing on the wrong decision. The court gave
preclusive effect not to the BOA's decision, but to its own
decision in the administrative appeal. The superior court
concluded that "the constitutional issues raised by Balough in the
[administrative] appeal were adequately litigated through written
briefs, including references to the record of administrative
proceedings, and in oral argument"and that "[t]he determination of
the constitutional issues on appeal satisfied due process."
In deciding whether the superior court's decision in the
administrative appeal can have preclusive effect on the same issues
brought in Balough's Section 1983 suit, we must decide whether the
issues were "actually litigated and determined in the first action
by a valid and final judgment, and [whether] the determination
[was] essential to the judgment."[Fn. 96] First, the superior
court's decision in the administrative appeal was a final decision.
Second, Balough had a full and fair opportunity to litigate the
issues. Whether she aired her constitutional grievances before the
superior court as part of her administrative appeal or as a part of
her direct civil suit is irrelevant; she was given an opportunity
to fully litigate all her constitutional claims. [Fn. 97]
Additionally, an administrative appeal limited to the agency record
meets the requirements of procedural due process, and an additional
opportunity to litigate constitutional claims heard without a trial
de novo is not required. [Fn. 98]
H. Attorney's Fees and Costs
FNSB was granted two awards of attorney's fees and costs,
the first as the prevailing party in Balough's administrative
appeal and the second as the prevailing party in Balough's direct
civil suit.
1. Award of attorney's fees and costs in the
administrative appeal
Alaska Civil Rule 82 governs the award of attorney's fees
in most civil cases. Alaska Appellate Rule 508, however, governs
the award of costs and attorney's fees in an administrative appeal.
[Fn. 99] Attorney's fees in Section 1983 cases are governed by
federal law. [Fn. 100]
Since our resolution of Balough's due process claim in
the administrative appeal requires us to remand the administrative
proceeding to the BOA for further proceedings, the superior court's
orders awarding FNSB attorney's fees and costs in the
administrative appeal must be vacated.
2. Award of attorney's fees and costs in the direct
civil suit
Balough argues that this award should be vacated for four
reasons: (1) FNSB "failed to include any notice of a cost bill
hearing as required by Civil Rule 79(a) when it submitted its cost
bill"; (2) "costs in this aspect of the case are governed by 42
U.S.C. sec. 1988. Thus, since Balough's claims were not frivolous
or
unreasonable, FNSB is not entitled to an award of costs"; (3) "FNSB
did not request attorney's fees under Section 1988 but has relied
solely on Civil Rule 82 to support its request"; and (4) even if
the Civil Rules did apply, "only a small portion of the costs taxed
by the Clerk would be recoverable."
FNSB argues that while attorney's fees for Balough's
Section 1983 claims are governed by Section 1988, Balough asserted
state-law claims in her direct civil suit. Thus, FNSB was entitled
to partial attorney's fees pursuant to Civil Rule 82. Furthermore,
FNSB argues, it submitted an itemization to the lower court and the
court awarded it fifty percent of attorney's fees, because the
court concluded that fifty percent of FNSB's time had been spent on
non-Section 1983 issues.
Balough is correct in her argument that any attorney's
fees for federal claims must be awarded pursuant to 42 U.S.C.
sec. 1988. [Fn. 101] Balough is also correct that fees will only
be
granted if "plaintiff's claims are found to be unreasonable,
frivolous, meritless, or vexatious."[Fn. 102] In this case, FNSB
did not seek, nor was it granted, attorney's fees pursuant to 42
U.S.C. sec. 1988. In fact, the superior court's award of
attorney's
fees to FNSB in the direct civil suit specifically stated that the
award was "based only on non-1983 claims, which the court estimates
at 50% of the time and effort spent." In Lyman v. State, this
court reversed an award of attorney's fees in a case that involved
both Section 1983 and non-Section 1983 claims because "[t]he record
[did not] include enough information to determine whether the costs
and attorney's fees derive from defending the state law claim as
distinguished from the federal law claims."[Fn. 103] In the
instant case, FNSB submitted to the superior court an eight-page
itemization of attorney time spent on the direct civil suit. The
amount of fees awarded to FNSB in Balough's direct civil suit,
$2,500, equals one-half of twenty percent of FNSB's actual
attorney's fees. We conclude that the superior court did not abuse
its discretion in awarding FNSB attorney's fees, pursuant to Civil
Rule 82, limited to defending Balough's non-Section 1983 claims.
For the same reasons we conclude that the superior
court's award of FNSB's costs incurred in defending the non-Section
1983 claims was also not an abuse of discretion. The court
specifically stated that "[t]he costs [were] apportioned to
eliminate sec. 1983 costs. Since this case was not originally
filed
as an [administrative] appeal, the transcripts are a recoverable
cost." The superior court based its award of costs on an itemized
list submitted by FNSB. The court rejected many of FNSB's
requested costs. Lastly, FNSB did in fact file a notice of cost
bill hearing; it simply did so after its motion to accept a late
filing of cost bill was granted.
We conclude that there was no error in the superior
court's decision in the direct civil action. Thus we affirm the
award of attorney's fees and costs in that proceeding.
IV. CONCLUSION
We VACATE the judgment of the superior court which
affirmed the decision of the BOA, and direct that it REMAND the
case to the BOA to determine whether Balough's property can be
brought into compliance with FNSBCO 8.16.030. If Balough's
property can be brought into compliance with the ordinance, and
Balough does so, then Balough must be afforded her rights under
FNSBCO 18.56.020, the "grandfather rights"ordinance. On the other
hand, if Balough's property cannot be brought into compliance with
FNSBCO 8.16.030, or if it can be and Balough declines to do so,
then Balough either has no rights under the "grandfather"ordinance
or has chosen to waive any rights she may have had, as the case may
be. The superior court shall then enter judgment granting Balough
rights under FNSBCO 18.56.020, or affirm the decision of the BOA
denying Balough's claimed rights. Attorney's fees and costs shall
be entered in accordance with the ultimate decision of the superior
court following the BOA proceedings.
We AFFIRM the judgment of the superior court dismissing
all of Balough's remaining claims, and awarding FNSB attorney's
fees and costs, in the direct civil action.
FOOTNOTES
Footnote 1:
Throughout this opinion, we refer to the area rezoned as
Nugget Loop. Nugget Loop is one of the main roads in the
Goldstream Valley.
Footnote 2:
"[The General Use] district is intended to be located in rural
areas where community sewer and water systems are unavailable."
Fairbanks North Star Borough Code of Ordinances (FNSBCO) 18.44.010.
Footnote 3:
A "permitted use"is defined as "any use of a building or
premises which is or may be lawfully established in a particular
zoning district, provided it conforms with all requirements and
regulations of this title for the zoning district in which such use
is or is proposed to be located." FNSBCO 18.06.010(A)(155); see also
FNSBCO 18.44.020.
Footnote 4:
FNSBCO 8.16.030 provides:
No junkyard or auto wrecking yard shall
be established or continued unless such junkyard or auto wrecking
yard is completely obscured from view of any traveled or occupied
location within five hundred feet from any boundary of the junkyard
or auto wrecking yard, within a building or within a continuous
solid fence no less than eight feet in height. The fence may be of
evergreen planting or other natural planting or topography of
sufficient density to provide a year-round screen.
FNSBCO 8.16.010(A) defines "Junk"as: "[D]ismantled or
wrecked automobiles, aircraft, motor vehicles or machinery, mobile
homes or trailers; used appliances or furniture; scrap building
material, metals, rubber, paper, plastic, or other scrap
materials."
Footnote 5:
The procedure for rezoning within the FNSB is as follows: The
person seeking a rezoning must submit an application to the
Department of Community Planning. See FNSBCO 18.52.010(C). The
Department forwards the request to the Planning Commission
(Commission). See FNSBCO 18.52.010(A). The Commission "[m]ake[s]
recommendations on requests for rezoning . . . and transmit[s] the
same to the borough assembly." FNSBCO 18.52.020(B). The borough
assembly makes the "determinations on requests for rezoning."
FNSBCO 18.52.040(A).
Footnote 6:
A Rural Residential district "is intended for low density
residential development and other compatible uses in areas where
community sewer and water systems may or may not be available."
FNSBCO 18.20.010.
Footnote 7:
FNSBCO 18.56.020 provides:
Any nonconforming building, structure,
use or lot which existed lawfully prior to the effective date of
the ordinance codified in this title or any lawful building,
structure, use or lot which has become nonconforming upon the
adoption of the ordinance codified in this title or any subsequent
amendment thereto, may be continued, subject to the restrictions in
this chapter. Any change in ownership of such a building,
structure, use or lot does not void grandfather rights.
Footnote 8:
FNSBCO 18.52.030 provides:
The borough assembly shall be the board of
adjustment for decisions regarding land lying outside of any city
incorporated in the Fairbanks North Star Borough. . . . The board
of adjustment, or an appeals officer that the board of adjustment
may designate, shall hear and decide appeals of planning commission
determinations on requests for conditional uses and variances, and
of decisions or determinations made by the department of community
planning in the enforcement of this title.
Footnote 9:
The two requirements of the statute are (1) junkyard
completely obscured from view; or (2) junkyard surrounded by a
continuous fence.
Footnote 10:
The BOA also considered an April 8 letter and photographs from
Balough's attorney, which raised numerous issues that it had not
previously considered. The BOA voted to include the letter and
photographs in the agency record.
Footnote 11:
42 U.S.C. sec. 1983 provides in part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .
Footnote 12:
AS 22.10.020(d) provides in part:
The superior court has jurisdiction in all
matters appealed to it from a subordinate court, or administrative
agency when appeal is provided by law. The hearings on appeal from
a final order or judgment of a subordinate court or administrative
agency . . . shall be on the record unless the superior court, in
its discretion, grants a trial de novo, in whole or in part.
Footnote 13:
This award of attorney's fees and costs is in addition to
those awarded to FNSB after the administrative appeal.
Footnote 14:
See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).
Footnote 15:
Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978)
(citations omitted).
Footnote 16:
South Anchorage Concerned Coalition, Inc. v. Coffey, 862 P.2d
168, 173 (Alaska 1993).
Footnote 17:
See Marlow v. Municipality of Anchorage, 889 P.2d 599, 602 n.1
(Alaska 1995); Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d
154, 161 (Alaska 1982).
Footnote 18:
Coffey, 862 P.2d at 173 n.12; Lazy Mountain Land Club v.
Matanuska-Susitna Borough Bd. of Adjustment and Appeals, 904 P.2d
373, 385 n.68 (Alaska 1995).
Footnote 19:
See Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995).
Footnote 20:
See In re Estate of Evans, 901 P.2d 1138, 1140 (Alaska 1995).
Footnote 21:
See Metcalfe Invs., Inc. v. Garrison, 919 P.2d 1356, 1360
(Alaska 1996) (citing Wilson v. Pollet, 416 P.2d 381, 381-84
(Alaska 1966)).
Footnote 22:
See, e.g., Morgan v. Department of Revenue, 813 P.2d 295, 297-
98 (Alaska 1991) (reviewing superior court's dismissal of
administrative appeal as untimely filed for an abuse of
discretion); Sheehan v. University of Alaska, 700 P.2d 1295, 1297
(Alaska 1985) (reviewing superior court's denial of request for an
extension of time to file opening brief in an administrative appeal
for an abuse of discretion).
Footnote 23:
See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Footnote 24:
Id.
Footnote 25:
See Davila v. Davila, 908 P.2d 1027, 1031 (Alaska 1995).
Footnote 26:
See Buster v. Gale, 866 P.2d 837, 846 n.9 (Alaska 1994)
(citations omitted).
Footnote 27:
Sever v. Alaska Pulp Corp., 931 P.2d 354, 361 n.10 (Alaska
1996).
Footnote 28:
Diedrich v. City of Ketchikan, 805 P.2d 362, 365 (Alaska 1991)
(quoting Haynes v. State, Commercial Fisheries Entry Comm'n, 746
P.2d 892, 894 (Alaska 1987)).
Footnote 29:
Id.
Footnote 30:
See State v. Lundgren Pac. Constr. Co., 603 P.2d 889, 892
(Alaska 1979) ("We conclude that the term 'administrative agency'
should be construed broadly to include the board of adjustment
since it was in fact performing administrative functions.").
Footnote 31:
See Diedrich, 805 P.2d at 366 (holding that the superior court
properly considered non-Section 1983 claims as an administrative
appeal).
Footnote 32:
FNSBCO 8.16.010(B).
Footnote 33:
FNSBCO 8.16.010(A).
Footnote 34:
FNSBCO 18.50.130(A)-(D).
Footnote 35:
A nonconforming use is one "which was lawfully established
prior to the adoption, revision or amendment of this title, but
which fails, by reason of such adoption, revision or amendment, to
conform to the present requirements of the zoning district in which
it is located." FNSBCO 18.06.010(A)(154) (emphasis added).
"Permitted Use"is defined as "any use . . . which is or may be
lawfully established in a particular zoning district, provided it
conforms with all requirements and regulations of this title for
[that] zoning district in which such use is or is proposed to be
located." FNSBCO 18.06.010(A)(155). "Lawful"is defined as "not
in violation of any local, state or federal law." FNSBCO
18.06.010(A)(78).
Footnote 36:
Marlow v. Municipality of Anchorage, 889 P.2d 599, 604 n.1
(Alaska 1995).
Footnote 37:
Carroll v. Hurst, 431 N.E.2d 1344, 1347 (Ill. App. 1982).
Footnote 38:
Town of Scituate v. O'Rourke, 239 A.2d 176, 180 (R.I. 1968).
Footnote 39:
Id.; see also, e.g., Carroll, 431 N.E.2d at 1347 (holding that
the defendant's failure to obtain a license did not operate to deny
nonconforming status because "the better rule is to make a
distinction between violations of statutes designed to regulate
land use [and] violations of statutes whose purpose is totally
unrelated to land use planning"); Trailer City, Inc. v. Board of
Adjustment, 247 N.W.2d 364, 365 (Iowa 1974) (holding that "failure
to comply with local or state licensing provision ordinarily will
not destroy a nonconforming use").
Footnote 40:
See, e.g., Chamberlin v. Hoadley, 360 A.2d 100, 102 (Vt. 1976)
(holding that a junkyard that did not comply with licensing or
certificate requirements was not in compliance with the law).
Footnote 41:
To the extent that the superior court concluded otherwise, we
do not agree. The superior court stated that "the ordinance does
not place the word 'or' between the requirement that junk be
obscured from view and the requirement that a fence be a minimum of
eight feet in height. The ordinance requires both." The fact that
the ordinance permits vegetative screening implies that an eight-
foot fence is not required if the junkyard is completely obscured
from view. It would be inconsistent to permit a vegetative screen
and yet also require an eight-foot fence. Based on the superior
court's interpretation, however, a junkyard would have to have both
an eight-foot fence and a vegetative screen to be in compliance.
Footnote 42:
See FNSBCO 8.16.030.
Footnote 43:
Article I, section 7 of the Alaska Constitution provides, in
part, that "[n]o person shall be deprived of life, liberty, or
property, without due process of law."
Footnote 44:
Black's Law Dictionary 1564 (6th ed. 1990).
Footnote 45:
Bidwell v. Scheele, 355 P.2d 584, 586 (Alaska 1960).
Footnote 46:
Norton v. Alcoholic Bev. Control Bd., 695 P.2d 1090, 1092-93
(Alaska 1985) (internal quotations omitted).
Footnote 47:
865 P.2d 741, 742 n.1 (Alaska 1993).
Footnote 48:
716 F.2d 1194 (8th Cir. 1983).
Footnote 49:
949 F.2d 890 (6th Cir. 1991).
Footnote 50:
Id. at 897; Nemmers, 716 F.2d at 1198.
Footnote 51:
881 P.2d 322, 327 (Alaska 1994).
Footnote 52:
936 P.2d 514, 519 (Alaska 1997).
Footnote 53:
Id. (quoting Henry L. McClintock, Principles of Equity 392
(1948)).
Footnote 54:
Id. at 519.
Footnote 55:
Balough could not have a vested right in the Department of
Community Planning's decision to grant her grandfather rights.
FNSBCO 18.52.030 provides that Department of Community Planning
decisions can be appealed to a Board of Adjustment. With an appeal
process built into the Department of Community Planning's decision
to grant Balough grandfather rights, Balough cannot argue that she
had a vested right in the Department's initial decision to grant
her nonconforming status and that a decision by the BOA reversing
the Department's decision would be unconstitutional.
Footnote 56:
The superior court stated that Balough "seem[s] to be arguing
that under substantive due process [she] had a right to retain the
GU-1 zoning because the change to RR zoning was arbitrary or
irrational." The court noted that Balough has "a right to be free
of an arbitrary or irrational zoning action affecting their
property." In her appeal, however, Balough does not assert that
the Assembly's decision to rezone was arbitrary and therefore
denied her due process. While Balough argues that her substantive
due process rights were violated by the Assembly's decision to
rezone because it constituted spot zoning (i.e, arbitrary,
unreasonable granting of a zoning classification), she makes a
separate "vested rights"argument on appeal. See infra Part
III.E.2.a for discussion of "spot zoning."
Footnote 57:
193 N.Y.S.2d 869 (Sup. Ct. 1959).
Footnote 58:
101 N.W.2d 347 (Mich. 1960).
Footnote 59:
Id. at 348.
Footnote 60:
Id.
Footnote 61:
Id.
Footnote 62:
Griswold v. City of Homer, 925 P.2d 1015, 1019 n.3 (Alaska
1996) (citing Concerned Citizens of S. Kenai Peninsula v. Kenai
Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974), which analyzed
a Borough Assembly's ordinance as a legislative enactment).
Footnote 63:
Id.
Footnote 64:
"Alaska's . . . due process clauses confer broader protection
than do their federal counterparts." Burnor v. State, 829 P.2d
837, 839 (Alaska App. 1992).
Footnote 65:
Concerned Citizens, 527 P.2d at 452; see also Mobil Oil Corp.
v. Local Boundary Comm'n, 518 P.2d 92, 101 (Alaska 1974) ("[T]he
test of substantive due process is whether the action of the
legislature must be said to be arbitrary. Judicial concern for
whether a statute comports with substantive due process goes no
farther than a perception that the act furthers a legitimate
governmental interest.") (footnotes omitted); Allam v. State, 830
P.2d 435, 438 (Alaska App. 1992) ("To satisfy the requirement of
substantive due process, legislation must be rationally related to
a valid legislative purpose.").
Footnote 66:
Concerned Citizens, 527 P.2d at 452.
Footnote 67:
Id.
Footnote 68:
Id.
Footnote 69:
Balough brought her constitutional "spot zoning"claim as a
part of her administrative appeal, and brought it again in her
direct civil suit against FNSB. The superior court, in resolving
Balough's administrative appeal, addressed Balough's claims that
the Borough Assembly's decision to rezone the decision was an
unconstitutional "spot zoning." The court applied an abuse of
discretion standard to the Assembly's rezoning decision. FNSB
never argued that Balough was time barred from challenging the
Borough Assembly's rezoning decision in her administrative appeal.
Arguably, Balough needed to challenge the rezoning decision by
February 15, 1993, thirty days after the rezoning was final.
Balough waited and challenged the Borough Assembly's rezoning as a
part of her suit filed in October. FNSB failed to object and the
superior court addressed the rezoning decision as if it were a part
of the administrative appeal.
Footnote 70:
Griswold v. City of Homer, 925 P.2d 1015, 1020 (Alaska 1996)
(quoting Robert M. Anderson, American Law of Zoning sec. 5.12, at
359
(1986)).
Footnote 71:
Id.
Footnote 72:
See id. ("Spot zoning analysis depends primarily on the facts
and circumstances of the particular case.").
Footnote 73:
Although the superior court's decision rejecting Balough's
claim of spot zoning preceded this court's decision in Griswold,
the court addressed factors similar those enumerated in Griswold.
Those factors included: size of the parcel rezoned; whether
Balough's property was treated differently from similar property;
and whether the rezoning was consistent with FNSB's comprehensive
plan.
Footnote 74:
Balough's claim that the "FNSB is arbitrarily and selectively
enforcing its fencing requirements against Balough but not against
other persons"is waived for inadequate briefing. See Petersen v.
Mutual Life Ins. Co. of N.Y., 803 P.2d 406, 410 (Alaska 1990)
("Where a point is not given more than a cursory statement in the
argument portion of a brief, the point will not be considered on
appeal.").
Footnote 75:
787 P.2d 624 (Alaska 1990).
Footnote 76:
See id. at 631.
Footnote 77:
Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula
Borough, 527 P.2d 447, 452 (Alaska 1974).
Footnote 78:
"The inclusion of the term 'damage' in the Alaska Constitution
affords the property owner broader protection than that conferred
by the Fifth Amendment of the Federal Constitution." Anchorage v.
Sandberg, 861 P.2d 554, 557 (Alaska 1993).
Footnote 79:
Id.
Footnote 80:
Id.
Footnote 81:
Id.
Footnote 82:
Id.
Footnote 83:
See Cannone v. Noey, 867 P.2d 797, 801 (Alaska 1994) (stating
that there was no per se taking because the parcel could have been
sold or it could have been used for a different use).
Footnote 84:
In her deposition, Balough was asked whether she was "thinking
of storing vehicles"on the property at the time she purchased it.
Balough responded: "Yes. And prior to . . . closing . . . we
asked [the seller] if we could bring cars out to the property and
-- before closing and she said, sure, no problem."
Footnote 85:
State v. Lundgren Pac. Const. Co., Inc., 603 P.2d 889, 895
(Alaska 1979) (quoting Withrow v. Larkin, 421 U.S. 35, 46-47
(1975)) (internal citations and quotations omitted).
Footnote 86:
378 P.2d 406, 409-10 (Alaska 1963).
Footnote 87:
Balough is seemingly challenging the constitutionality of
city councils sitting as boards of adjustment in general.
Footnote 88:
See Griswold v. City of Homer, 925 P.2d 1015, 1019 n.3 (Alaska
1996) (stating that the Homer City Council's adoption of a zoning
ordinance was an act of a "legislative body, rather than a decision
of a zoning board").
Footnote 89:
Id. at 1019.
Footnote 90:
See FNSBCO 18.52.040 ("The borough assembly shall: A. Make
determinations on requests for rezoning and amendments to this
title.").
Footnote 91:
See FNSBCO 18.52.030 ("The borough assembly shall be the board
of adjustment . . . [and] shall hear and decide appeals of . . .
determinations made by the department of community planning in the
enforcement of this title.").
Footnote 92:
805 P.2d 362, 369 (Alaska 1991).
Footnote 93:
839 F.2d 630 (9th Cir. 1988).
Footnote 94:
Diedrich, 805 P.2d at 369-70.
Footnote 95:
Id. at 370.
Footnote 96:
Bignell v. Wise Mechanical Contractors, 720 P.2d 490, 494
(Alaska 1986).
Footnote 97:
In fact, the superior court addressed Balough's due process
claim for a third time in deciding her motion for reconsideration.
Footnote 98:
See Diedrich, 805 P.2d at 370 n.16 (citing Gahr v. Trammel,
796 F.2d 1063, 1069 (8th Cir. 1986) (giving preclusive effect in a
Section 1983 case to a state court judgment even though the state
court had not reviewed fact-finding of administrative board
de novo)).
Footnote 99:
See id. at 371 (stating that, when the superior court treats
a case as an administrative appeal, "the Appellate Rules, not the
Civil Rules, govern the award of attorney's fees").
Footnote 100:
See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421
(1978).
Footnote 101:
See Diedrich, 805 P.2d at 370.
Footnote 102:
Id. (internal quotations omitted).
Footnote 103:
824 P.2d 703, 707 (Alaska 1992).
