You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Cizek v. Concerned Citizens of Eagle River (6/14/2002) sp-5584
Cizek v. Concerned Citizens of Eagle River (6/14/2002) sp-5584
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JENNIFER CIZEK and JOSEPH )
CIZEK, )
)
Appellants, ) Supreme Court No. S-9574
)
v. ) Superior Court No.
) 3AN-98-7307 CI
CONCERNED CITIZENS OF EAGLE )
RIVER VALLEY, INC., NORA ) OPINION ON REHEARING
FIRMIN, PATRICIA BALZARINI, )
and CHARLES BALZARINI, ) [No. 5584 - June 14, 2002]
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Brian C. Shortell, Judge.
Appearances: William S. Cummings, Ashburn &
Mason, P.C., Anchorage, for Appellants.
Suzanne H. Ewy, Law Offices of Suzanne H.
Ewy, Eagle River, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
The Cizeks appeal a superior court decision that
enjoined their use of a parcel of land as an airstrip after the
court held that the airstrip was not a continuing nonconforming
use under Anchorage zoning laws. Because a nonconforming use of
property is not maintained simply by the property's continual
suitability for the use or by sporadic unauthorized use, we
affirm the trial court's decision.
II. FACTS AND PROCEEDINGS
This case centers on the history of a private airstrip
in Eagle River. Harvey Pullen homesteaded a parcel of land in
1964 on which he built the airstrip - then in an unrestricted
zoning area. In 1970 Pullen sold a part of his homestead
adjacent to the airstrip to the Leonards. James "Pat" Leonard is
a pilot and used the airstrip with Pullen's permission. In 1974
Pullen sold the balance of the homestead, including the airstrip,
to Robert and Katie Spils and Helen Cole. As part of the sale,
the Spilses and Cole signed a written agreement with Pullen
granting Leonard a revocable license to continue using the
airstrip. The agreement was not recorded.
In 1982 the Spilses and Cole sold their parcel to a
group of investors called the Eagle River Partnership
(Partnership), which intended to develop the property, including
the airstrip, as a subdivision. Two years later, in 1984, the
property was rezoned R-10, for which an airstrip is not a
permitted or conditional use. The following year, the
Partnership discovered the existence of the written agreement
with Leonard and sued to quiet title. Leonard settled with the
Partnership and agreed not to use the airstrip as a condition of
settlement.
After Leonard's settlement, two other pilots, Leonard's
friends Lee McElhany and Ken Evans, continued to use the airstrip
on a very infrequent basis, but not with the knowledge or consent
of the Partnership.
By 1990 the Partnership's development plans had fallen
through and the land went through several conveyances, including
reconveyance to the Spilses and Cole in lieu of foreclosure.
Steve Dike and Barry Kell purchased the property in 1990. Dike
built a house on the property in 1991-92, and Kell conveyed his
interest to Dike in 1994.
Dike hit upon the idea of selling parcels of the
property as a fly-in subdivision. In 1995 he cleared the
airstrip and petitioned the Municipality of Anchorage to rezone
the parcel R-6 for the fly-in subdivision and to grant a
conditional use allowing the airstrip to be used. The public
hearing process regarding the rezoning engendered a great deal of
neighborhood opposition. The Department of Planning assigned
Municipal Code Enforcement Manager David Brennan to determine if
the airstrip was a legal nonconforming use; he concluded it was.
Acting on Brennan's advice, the Planning Commission granted the
conditional use and recommended that the Anchorage Assembly
rezone the property.
Eagle River resident Art Isham appealed the Planning
Commission's conditional use decision. In April 1996 the
Assembly decided to stay the commission's approval of the
conditional use for the airstrip, concluding that the conditional
use should not take effect until a zoning change was approved.
The next month the Assembly provisionally granted Dike's rezoning
request, requiring that he first file a plat in conformity with
his plans. Dike never filed the plat, and no further action was
taken: the property was not rezoned.
About a year later, in 1997, Dike sold half the
property to the Cizeks. They planned to build a home with an
attached hangar and use the airstrip. But in 1998, an
organization calling itself Concerned Citizens sued to enjoin
Dike and the Cizeks from using the airstrip; Concerned Citizens
claimed that the nonconforming use right had lapsed from non-use
between 1985 and 1995.
After a bench trial, Superior Court Judge Brian C.
Shortell ruled in favor of Concerned Citizens that the
nonconforming use rights had lapsed.
The Cizeks appeal.
III. DISCUSSION
A. The Airstrip Was Not a Continuing Nonconforming Use.1
The Cizeks challenge the trial court's interpretation
and application of Anchorage Municipal ordinances governing
nonconforming uses. They claim that the airstrip on their
property was a continuing nonconforming use under Anchorage's
zoning laws.
Although the Anchorage Municipal Code tolerates
nonconforming uses, it encourages their termination and prevents
them from expanding.2 Anchorage Municipal Code (AMC) 21.55.030
governs nonconforming uses of land. It states in relevant part:
Where, at the time of the original
passage of applicable regulations, lawful use
of land existed which would not be permitted
by the regulations thereafter imposed . . . ,
and where such use involves no individual
structure other than small or minor accessory
buildings, the use may be continued so long
as it remains otherwise lawful, provided:
. . . .
C. If any such nonconforming use of
land ceases for any reason for a period of
more than one year, any subsequent use of
land shall conform to the regulations
specified by this title for the district in
which such land is located.
1. Actual use is required to continue nonconforming
uses.
The Cizeks argue that the fact that the airstrip was
usable as an airstrip throughout the relevant time period should
suffice to continue an existing nonconforming use. They reason
that the "use" contemplated by the Municipal Code is the "use of
the land as an airstrip, not use of the airstrip by planes."
But the Cizeks' interpretation of what satisfies the
Municipal Code to continue a nonconforming use is illogical. If
we were to adopt the Cizeks' interpretation, local governments
could almost never terminate a nonconformity because it would
legally continue as long as the land's physical suitability for
actual nonconforming use remained. In effect, then, the Cizeks
propose to define cessation of use under AMC 21.55.030(C) as
cessation of all potential for use. We doubt that the Anchorage
Assembly had this result in mind when it provided for the
termination of nonconformities after more than one year of the
cessation of the prior use of the land.
We rejected an analogous argument in Kelly Supply Co.
v. City of Anchorage.3 There, a legal nonconforming use was
established by the Alaska Crippled Children's Association for a
"diagnostic, treatment and educational center for handicapped
children" within a district zoned for residential use.4 After
the children's center vacated the building, the zoning board
approved the new owner's petition to use the building as a blood
bank under the existing nonconforming use. Later, the owner
leased parts of the building to the Alaska Mental Health
Association and the Rural Alaska Community Action Program. The
trial court upheld the zoning board's challenge to those uses as
not being consistent with the existing nonconforming use. On
appeal, the building owner argued that it had a vested right to
use the building in the same manner as the previous owner and
that the current use was consistent with the prior use because
both were "medical uses."5 We disagreed, holding that the
decision of the zoning board to approve the blood bank's use
under the previous nonconforming use terminated any other rights
held under the prior use. We also specifically rejected Kelly
Supply's argument that no change in use occurred, noting that the
transition from the use as a disabled children's center to a
blood bank "was a change of use."6 Therefore, we rejected the
argument that the nonconforming use had not changed simply
because the physical infrastructure for both medical uses was
similar.
Moreover, we have noted a policy that "nonconforming
uses are to be restricted and terminated as quickly as possible"7
because those uses frustrate a local government's implementation
of consistent and logical land use planning. The Anchorage
Municipal Code echoes this policy stating an intent to "permit .
. . nonconformities to continue until they are removed, but not
to encourage their perpetuation."8 We will not frustrate that
intent by defining use to include usability.
We therefore reject the Cizeks' argument that because
the land was usable as an airstrip the nonconforming use
continued.
2. Sporadic, unauthorized use will not continue a
nonconforming use.
The Cizeks next argue that the occasional use of the
airstrip by McElhany and Evans continued the nonconforming use.
They assert that McElhany and Evans used the airstrip at least
once per year between 1985 and 1995 and that use continued the
nonconformity. Concerned Citizens argues that McElhany's and
Evans's use of the airstrip was trespass and should not be
counted as use to sustain a nonconforming use. Alternatively,
Concerned Citizens argues that even if McElhany's and Evans's
flights were not trespass, they were too infrequent to continue
the nonconforming use.
The trial court ruled that the nonconforming use
terminated after the Leonards disclaimed any interest in the land
in 1985. The court found that no one other than McElhany, Evans,
and Leonard used the airstrip between 1984 and 1990; the use was
not known to the owners; the airstrip was not maintained for a
period of at least five years; and airplanes were not stored at
the airstrip.9
After reviewing the record, we believe that the trial
court was not clearly erroneous in finding that McElhany and
Evans were the only pilots that may have used the airstrip at
least yearly between 1984 and 1995 - the Cizeks concede this.
And it is also a reasonable inference from the evidence in the
record that their use was at best unauthorized and may have been
trespass. Pat Leonard testified that he knew that the 1985
settlement precluded him from using the airstrip, but that he
invited McElhany and Evans to use the airstrip for their annual
flight checks and for social visits. McElhany and Evans
apparently assumed Leonard owned the airstrip; they therefore
never sought or received the owners' permission to use the
airstrip.
Given this evidence, we conclude that the trial court
did not err in finding that the highly intermittent, unauthorized
use by McElhany and Evans did not suffice to continue the
nonconforming use.10
B. The Statute of Limitations Had Not Run.11
The Cizeks argue that the statute of limitations had
run on Concerned Citizens' cause of action. They assert that the
action was subject to the two-year limitations period for actions
upon a statute and that the period began to run in March 1995,
when Dike began actively using the property as an airstrip.
Concerned Citizens argues that the trial court correctly ruled
that the cause of action accrued each day that the property
violated the zoning laws. We agree.
Where a cause of action is based on a continuing
violation of a land use regulation, the Anchorage Municipal Code
provides that each day is a separate violation: "Each act or
condition in violation of this title, and every day upon which
the act or condition occurs, is a separate violation of this
title."12 Therefore, the statute of limitations started to run
anew each day that the property was in violation, and Concerned
Citizens' suit was timely.
C. Estoppel and Laches Did Not Bar the Action.13
The Cizeks argue that Concerned Citizens should be
estopped from arguing that the nonconforming use was discontinued
before 1995; alternatively, they argue that laches bars Concerned
Citizens' suit.
The trial court, in a separate decision and order,
rejected the Cizeks' estoppel and laches defenses. With respect
to the estoppel argument, the court ruled that the Cizeks did not
reasonably rely on any Municipal assertion of an existing
nonconforming use and would not be prejudiced by enforcing the
zoning restrictions. More important, the court noted that
"[e]ven if the Municipality's assertion should estop it from
forbidding the Cizeks['] use of the airstrip, justice would not
require [Concerned Citizens] . . . to be similarly estopped."
With respect to laches, the court held that the defense did not
apply because Concerned Citizens did not unduly delay in bringing
suit.
We agree with the trial court that there was no basis
for applying estoppel to Concerned Citizens' arguments.14 The
Cizeks cannot assert estoppel against Concerned Citizens because
Municipal ordinances give citizens an independent right of action
to enforce zoning laws;15 Concerned Citizens did not make an
assertion upon which the Cizeks relied, and statements by the
Municipality could not have estopped the group.16
Laches is a somewhat closer call.17 The Cizeks assert
that laches should have barred Concerned Citizens' suit because
it waited more than three years to sue after Code Enforcement
Manager Brennan's decision declared the airstrip a nonconforming
use.
We recently discussed the application of laches in
Laverty v. Alaska Railroad Corp.18 There Laverty sued to enjoin a
contract between the railroad and a contractor - Flamingo
Brothers - fifteen months after learning of the contract and his
potential cause of action. In the interim, Laverty "knew, over
the course of his one-year delay in bringing suit, that Flamingo
Brothers was spending large amounts of time and money on
geotechnical studies to support its land use permit
applications."19 We held that the trial court did not abuse its
discretion in applying laches.
By contrast, the Cizeks do not argue that Concerned
Citizens' lawsuit was unduly delayed based on the time-line of
the Cizeks' ownership of the property. In fact, they do not even
challenge the trial court's finding that Concerned Citizens filed
its suit shortly after learning that the Cizeks purchased the
property. Instead, quoting Kohl v. Legoullon,20 the Cizeks assert
that an aggrieved party must "file suit promptly once it is clear
the transgressor has committed to an irrevocable course of
conduct."
But here, the only transgressors seeking the protection
of the laches defense were the Cizeks; and they bought the
property in the fall of 1997. Before the Cizeks bought the
property, no other party had actively sought to re-establish use
of the airstrip since 1996, when the Assembly stayed the Planning
Commission's decision to grant Dikes a conditional use. Because
the Cizeks apparently concede that Concerned Citizens did not
learn of their ownership or their plans regarding the airstrip
until the spring of 1998, we hold that the trial court did not
abuse its discretion in finding no undue delay in Concerned
Citizens' June 1998 suit.
D. The Cizeks Waived Their Claim for Rule 37 Sanctions.21
The Cizeks assert that the superior court abused its
discretion in failing to assess sanctions against Concerned
Citizens after the court granted two of the Cizeks' three motions
to compel discovery.22 Concerned Citizens points out in response
that Civil Rule 37 requires a hearing before awarding attorney's
fees against a party, that the Cizeks never requested a hearing,
and that a hearing was never held. Concerned Citizens' argument
is persuasive. Because no hearing was requested on the Cizeks'
motions for discovery sanctions, we conclude that Civil Rule
37(a)(4) did not oblige the superior court to impose sanctions or
to explain its rulings denying the Cizeks' motions. Under the
circumstances presented, we find no abuse of discretion in the
court's decision to deny sanctions.
E. The Trial Court Did Not Abuse Its Discretion by Denying
Motion for a New Trial.23
The Cizeks argue that the trial court should have
granted their motion for a new trial because it decided the case
based upon an issue raised without notice shortly before trial.
They claim that they were prejudiced by the trial court's
pretrial finding that McElhany's and Evans's use of the airstrip
was unknown and not consented to by the property owners and
therefore could not preserve the nonconforming use. The Cizeks
also claim that the trial court's decision essentially shifted
the burden of proof to them to prove that legal use continued the
nonconforming use, rather than placing the burden on Concerned
Citizens to show a cessation of use.
Yet it seems clear that at all times the issue before
the trial court was whether the airstrip was a continuing
nonconforming use. To prevail as plaintiffs, Concerned Citizens
bore the burden of showing that there was no legal use of the
airstrip for a period of at least one year.24 Regardless of what
legal theories Concerned Citizens advanced to meet its burden,
the dispositive legal issue always involved the question of
whether there was sufficient legal use of the airstrip to
continue the nonconformity - not just whether McElhany and Evans
were trespassers.
It became apparent early in the trial that the Cizeks
planned to defend against Concerned Citizens' claim of
interrupted use by attempting to characterize McElhany's and
Evans's use as sufficient to constitute continuing use.
Concerned Citizens, in contrast, hoped to establish that this use
was too sporadic and that no other use existed. The trial court
simply resolved this point by ruling as a matter of law, based on
undisputed evidence, that McElhany's and Evans's use could not
qualify as a continuous use, no matter how frequent it was,
because it was unknown to the owners and had never been
authorized. While this ruling certainly deprived the Cizeks of
an anticipated defense, they had no vested right to defend a
legal theory that proved to be wrong.
In the Cizeks' memorandum and affidavits supporting
their motion for a new trial, they claimed to have several
additional witnesses who could have testified regarding use of
the airstrip. The Cizeks' attorney claimed to have chosen not to
pursue these witnesses further during discovery because of the
associated expenses and his belief that McElhany's and Evans's
testimony would be dispositive. It is clear, then, that the
Cizeks' decision not to develop or use this evidence was simply a
tactical choice.
The Cizeks had notice that the legal use of the
airstrip was the central issue in the case. For strategic
reasons, they failed to pursue some witnesses and evidence during
discovery. It is also evident that the potential witnesses they
identified had little, if any, additional evidence to provide had
the trial court granted their motion. Their tactical
miscalculation affords them no right to another trial. In any
event, we note from our review of the Cizeks' motion for a new
trial and their other supporting pleadings that the additional
testimony they proposed to offer would have added little relevant
information concerning the actual use of the airstrip. For these
reasons, we hold that the trial court did not abuse its
discretion when it denied the Cizeks' motion for a new trial.
F. The Cizeks Should Not Be Enjoined from Storing
Airplanes on the Property.
The superior court's final judgment includes a
provision enjoining the Cizeks from storing airplanes on their
property. The Cizeks point out that AMC 21.40.115.C.5 allows
aircraft storage as an accessory use in an R-10 district, and
they request that the injunction be modified to require
compliance with current zoning regulations without prohibiting
this lawful use. Concerned Citizens acknowledges that storing
aircraft is a permitted use under R-10 zoning and agrees that the
injunction should be corrected to allow the activity. Because
the Cizeks' point appears to be well taken, we direct the
superior court to amend the injunction on remand to enable the
Cizeks to store airplanes on their property as allowed by current
zoning ordinances.
IV. CONCLUSION
The decision of the superior court is AFFIRMED.
In the Supreme Court of the State of Alaska
Jennifer and Joseph Cizek, )
) Supreme Court No. S-09574
Appellant(s), )
v. ) Order
) Petition for Rehearing
Concerned Citizens of Eagle River, )
et al., )
)
Appellee(s).) Date of
Order: 6/14/02
)
Trial Court Case # 3AN-98-07307CI
Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner,
and Carpeneti, Justices.
On consideration of the Petition for Rehearing, filed on
February 11, 2002,
It is Ordered:
1. The petition is GRANTED as to the point
raised in paragraph 7 of the petition and is
DENIED as to all other points.
2. The opinion previously issued in this case,
Opinion No. 5528 (February 1, 2002), is
WITHDRAWN and REPLACED by Opinion No. 5584,
which is attached to this order.
Entered by direction of the court.
Clerk of the Appellate Courts
Marilyn May
Supreme Court Order on Petition for Rehearing
Re: Cizek v. Concerned Citizens of Eagle River
File No. S-9574
Page Two
cc: Supreme Court Justices
Judge Shortell
Trial Court Appeals Clerk
West Publishing
Other Publishers
Distribution:
William S Cummings
Ashburn & Mason
1130 West Sixth Avenue #100
Anchorage AK 99501
Suzanne Ewy
Law Office of Suzanne Ewy
P O Box 2125
Barrow AK 99723
_______________________________
1 We use our independent judgment "[w]here 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," Balough v. Fairbanks
North Star Borough, 995 P.2d 245, 254 (Alaska 2000), and "adopt
the rule of law that is most persuasive in light of precedent,
reason, and policy." Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979).
2 Anchorage Municipal Code 21.55.010 describes the intent
of the code regarding nonconforming uses:
Within the zoning districts
established by this title . . . there
may exist . . . uses of land . . . which
were lawful before the effective date of
the applicable regulations, but which
would be prohibited, regulated, or
restricted under the terms of chapters
21.35 through 21.50 . . . . It is the
intent of this chapter to permit these
nonconformities to continue until they
are removed, but not to encourage their
perpetuation. It is further the intent
of this chapter that nonconformities
shall not be enlarged upon, expanded or
extended, or be used as grounds for
adding other structures or uses
prohibited elsewhere in the same
district.
3 516 P.2d 1206 (Alaska 1973).
4 Id. at 1207-08.
5 Id. at 1209-10.
6 Id.
7 Id.
8 AMC 21.55.010.
9 The relevant findings of the trial court stated:
17. From 1986 through 1990, the Eagle
River Partnership owned the property.
During that time neither the Eagle River
Partnership, its individual members, or
any of its representatives maintained,
flew on and off, stored airplanes on, or
used the strip for aircraft operations.
No maintenance of the strip took place
from 1982-1990, and no usable planes
were stored on the property during that
time. . . .
20. No one except Leonard, Evans, or
McElhany used or flew on and off the
strip from 1984 through 1990.
21. From 1985 to 1991, no pilot who
used the strip had the owners'
permission to use it. Leonard was,
during those years, contractually and
legally bound not to use it. For a
period of at least five years, from
December 1985 through 1991, no one with
an ownership interest in the property
maintained the strip, or kept airplanes
there, or gave permission for its use,
or acquiesced in its use.
The court then ruled that:
40. The Leonards' legal right to use
the property as an airstrip terminated
with their settlement of the Eagle River
Partnership lawsuit against them in
December, 1985.
41. Pat Leonard's use from December,
1985 through the date he was given
permission by Dike to use the property,
was in violation of his written
settlement agreement with Eagle River
Partnership and the Leonards' disclaimer
of interest. This renders any use
during that time by Leonard insufficient
to maintain a nonconforming use. He had
no legal right to allow Evans or
McElhany to use it as they did. Their
use, as well as his, was non-consensual
and unknown to the owners of the
property.
42. Pursuant to A.M.C. 21.55.030, the
valid nonconforming use that existed in
1985 terminated, as the nonconforming
use of the property ceased for a period
of more than one year. Evans' and
McElhany's use that was unknown to the
owners and unconsented to by them will
not operate to preserve a nonconforming
use that effectively ended in December,
1985.
10 We note that federal regulations of private airstrips
define private use to exclude use unauthorized by the airstrip
owner. See 14 C.F.R. 157.2 ("Private use means available for
use by the owner only or by the owner and other persons
authorized by the owner.") (emphasis added).
11 We "exercise our independent judgment when interpreting
and applying statutes of limitations." McDowell v. State, 957
P.2d 965, 968 n.4 (Alaska 1998).
12 AMC 21.25.010(B).
13 Whether the legal doctrines of estoppel and laches
apply to a case are questions of law to which we apply the
substitution of judgment standard of review. State, Dep't of
Commerce & Econ. Dev. v. Schnell, 8 P.3d 351, 355 (Alaska 2000)
(estoppel); id. at 358 (laches). Under that standard we will
interfere with a trial court's broad discretion to deny the
application of estoppel or laches only when we have "a firm and
definite conviction that a mistake has been made." Keener v.
State, 889 P.2d 1063, 1066 (Alaska 1995).
14 The defense of estoppel has four elements: (1) A party
substantially changes position; (2) in reliance on a promise made
by another; (3) the reliance was either actually foreseen or
reasonably foreseeable by the promisor; and (4) enforcement of
the promise is necessary in the interests of justice. See Reeves
v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1142 (Alaska 1996).
15 See AMC 21.25.050.
16 See 28 Am. Jur. 2d, Estoppel & Waiver 32, 131
(2000).
17 Laches has two elements: the defendant must show (1)
that the plaintiff has unreasonably delayed in filing suit and
(2) that the delay caused the defendant undue harm or prejudice.
See City & Borough of Juneau v. Breck, 706 P.2d 313, 315 (Alaska
1985).
18 13 P.3d 725, 729 (Alaska 2000).
19 Id.
20 936 P.2d 514, 517 (Alaska 1997).
21 We review a trial court's decisions regarding discovery
sanctions under Civil Rule 37 for an abuse of discretion. Glover
v. Sager, 667 P.2d 1198, 1203-04 (Alaska 1983).
22 The Cizeks base their argument on Alaska Civil Rule
37(a)(4), which provides:
If the motion [to compel] is granted or
if the disclosure or requested discovery is
provided after the motion was filed, the
court shall, after affording an opportunity
to be heard, require the party or deponent
whose conduct necessitated the motion or the
party or attorney advising such conduct or
both of them to pay the moving party the
reasonable expenses incurred in making the
motion, including attorney's fees, unless the
court finds that the motion was filed without
the movant's first making a good faith effort
to obtain the disclosure or discovery without
court action, or that the opposing party's
nondisclosure, response or objection was
substantially justified, or that other
circumstances make an award of expenses
unjust.
23 The trial court has broad discretion in deciding
whether to grant or deny a motion for a new trial. Buoy v. ERA
Helicopters, Inc., 771 P.2d 439, 442 (Alaska 1989). We review
the trial court's denial of a motion for a new trial under the
abuse of discretion standard. State v. Municipality of
Anchorage, 805 P.2d 971, 973 (Alaska 1991).
24 See AMC 21.55.030(C).
