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Cabana v. Kenai Peninsula Borough (7/12/2002) sp-5594
Cabana v. Kenai Peninsula Borough (7/12/2002) sp-5594
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
DORIS CABANA, VIOLA JERREL, )
and NANCY HILLSTRAND, ) Supreme Court No. S-9994
)
Appellants, ) Superior Court No.
) 3KN-99-502 CI
v. )
) O P I N I O N
KENAI PENINSULA BOROUGH, )
) [No. 5594 - July 12, 2002]
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: Robert C. Erwin and Roberta C.
Erwin, Erwin & Erwin, LLC, Anchorage, for
Appellants. Holly B. Montague, Assistant
Borough Attorney, Soldotna, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
The Kenai Peninsula Borough (KPB) Assembly passed an
ordinance in March 1999, exchanging forty acres of borough
property near Homer (the Homer parcel) for twenty acres of
property near Anchor Point owned by Clifford Shafer (the Shafer
parcel). The Borough had appraised the Shafer parcel at $24,500
and the Homer parcel at $33,700. The same day that it passed the
exchange ordinance, the KPB Assembly passed a resolution to
classify the Homer parcel as light industrial with a variance for
stockpiling material and the operation of heavy equipment and
with restrictions on the use and development of the property.
Doris Cabana, Viola Jerrel, and Nancy Hillstrand are taxpayers of
the Kenai Peninsula Borough who live within one mile of the Homer
parcel. They filed suit in superior court, seeking an order
determining that the KPB Assemblys classification resolution was
an improper exercise of zoning power and declaring void the
ordinance authorizing the exchange. The superior court granted
KPBs cross-motion for summary judgment, and Cabana appeals that
decision. We affirm because there is no genuine issue of
material fact regarding KPBs appraisal procedures. KPB is
therefore entitled to judgment as a matter of law.
II. FACTS AND PROCEEDINGS
A. Factual History
Clifford and Cheryl Shafer owned a twenty-acre parcel
of land in Anchor Point. Approximately one-half of the Shafer
parcel is wetlands, and sixty-four of 105 parcels within a half-
mile radius of the parcel are developed residentially. Neighbors
of the Shafer parcel opposed Shafers two applications to operate
a material site1 for gravel extraction. The first application
was denied and, after Shafer applied the second time, the Coastal
Consistency Commission began reviewing the impact of a material
site on the wetlands. Facing continuing opposition by neighbors
and potentially prohibitive expense as a result of the review
process, Shafer approached KPB with an offer to exchange his
parcel for the Homer parcel owned by KPB.
Unlike the Shafer parcel, the forty-acre Homer parcel
shares its borders primarily with industrial sites, including an
asphalt plant, the borough landfill, and a State Department of
Transportation maintenance yard. One-third of the Homer parcel
has been identified as wetlands. Just as neighbors had opposed
Shafers application for a material site permit, several neighbors
of the Homer parcel, including the plaintiffs, vociferously
opposed the land exchange.
As part of a 1999 reappraisal of all land in the
Homer/Anchor Point area, KPB Land Appraiser Louise Paul appraised
the two parcels of land in January 1999. Paul appraised the
Shafer parcel at $24,500 and the Homer parcel at $33,700. In
reviewing the appraisals in February 1999 Paul reaffirmed those
valuations. Her supervisor, Appraisal Manager Gary Fandel, noted
that the Homer parcel may have greater future potential due to
commercial and light industrial development occurring in the
vicinity.
On June 1, 1999, the KPB Assembly held a public hearing
on Ordinance 99-17 and its companion Resolution 99-050, which
proposed classifying the Homer parcel as light industrial with an
allowance for stockpiling and operation of heavy equipment.2 The
three plaintiffs again commented on the proposed classification.
At the conclusion of the hearing, the KPB Assembly adopted the
resolution. Also on June 1, 1999, the KPB Assembly approved
Ordinance 99-17, which set out findings regarding the benefits of
the land exchange, authorized the exchange, and imposed deed
restrictions to preserve the recreational use of land bordering
the Homer parcel and to protect the wetlands and streams. The
ordinance ordered: The borough land will be classified in
accordance with KPB 17.10 prior to the exchange, provided that
this land may be used for material stockpiling and related
activities including sorting and the operation of heavy
equipment. (Emphasis in original.) The ordinance noted that the
proposed exchange is of almost equal value, excluding the value
of gravel resources on the Shafer parcel.
B. Procedural History
In July 1999 Cabana, Jerrel, and Hillstrand (Cabana)
filed this suit challenging the classification and land exchange.3
Cabana moved for summary judgment in May 2000, claiming that the
Homer parcel was not exchanged at fair market value in violation
of the KPB Code based on three arguments: (1) the land was not
appraised at fair market value; (2) the exchange itself on the
new appraised value for 1999 was not an exchange for fair market
value; and (3) Louise Paul was not a qualified appraiser for
1999, under Kenai Peninsula Borough Ordinances, to determine fair
market value. KPB opposed the motion for summary judgment and
filed a cross-motion for summary judgment. The superior court
denied Cabanas motion and granted KPBs cross-motion for summary
judgment. Cabana appeals the summary judgment order in favor of
KPB.
III. STANDARD OF REVIEW
We review a grant or denial of summary judgment de
novo.4 Summary judgment is appropriate if no genuine issue of
material fact exists and the movant is entitled to judgment as a
matter of law.5 When ruling on a motion for summary judgment, we
may consider any argument ascertainable from the record, even if
the superior court did not rule on it.6 We are not bound by the
reasoning articulated by the superior court and can affirm a
grant of summary judgment on alternative grounds, including
grounds not advanced by the superior court or the parties.7 The
nonmoving party is the non-prevailing party on a summary judgment
motion. Because Cabana appeals the grant of KPBs cross-motion
for summary judgment, Cabana is the nonmoving, losing party with
regard to that motion. As such, facts are to be viewed in the
light most favorable to Cabana, and reasonable inferences are to
be resolved in Cabanas favor.8
Summary judgment is inappropriate when the affidavits
and other evidence before the trial court establish that a
genuine issue of material fact exists.9 The court does not weigh
the evidence or witness credibility on summary judgment.10 A
court must deny a motion for summary judgment if there is
contradictory evidence, or the movants evidence is impeached on
material matters, because in such cases an issue of credibility
exists.11
IV. DISCUSSION
The issue before us on appeal is whether the trial
court erred in granting KPBs motion for summary judgment on
Cabanas claimed violations of substantive due process and the KPB
Code.12 KPB and Cabana have differing views regarding the value
of the Homer parcel.13 But this factual dispute is immaterial to
our conclusion that KPB did not abuse its discretion in
authorizing the land exchange, that it complied with the
statutory procedural requirements, and that it did not violate
Cabanas right to substantive due process. We conclude that the
trial court properly granted summary judgment in favor of KPB
because, even assuming the facts alleged by Cabana, the nonmoving
party, Cabana does not have a valid legal claim against KPB.14
A. KPB Did Not Violate the KPB Code by Approving the Land
Exchange.
1. Kenai Peninsula Borough Code 17.10.100(C) governs
this land exchange.
All municipalities have the power to acquire and
dispose of real property.15 Alaska Statute 29.35.090(a) provides
that [t]he governing body shall by ordinance establish a formal
procedure for acquisition and disposal of land and interests in
land by the municipality. The formal procedures governing land
in the Kenai Peninsula Borough can be found in Kenai Peninsula
Borough Code (KPBC) 17.10.090 and 17.10.100(C). Kenai Peninsula
Borough Code 17.10.090 relates to land that is sold, leased, or
otherwise disposed of and provides that [a]ll lands shall be sold
or leased at fair market value or fair market rental value as
determined by a qualified appraiser except as provided in
sections 17.10.100(I) and 17.10.120(D). Kenai Peninsula Borough
Code 17.10.100(C) governs exchange sales:
The assembly may by ordinance authorize the
exchange of land but only if the ordinance
authorizing the exchange sale contains a
finding that the exchange sale is in the best
interests of the borough and a statement of
the facts on which the finding is based.
Cabana argues that KPB violated KPBC 17.10.090 by exchanging
properties that were not of equal market value.
But we conclude that KPBC 17.10.100(C), rather than
KPBC 17.10.090, applies to this case. First, nothing in the KPB
Code clearly requires that land exchanges comply with sections
other than 17.10.100(C), which specifically addresses land
exchange sales. The plain language of the code requires sales of
borough land to be at fair market value, but it does not
expressly require exchanges of borough land to be at fair market
value. Second, Ordinance 99-17 clearly states that [t]he mayor
is authorized, pursuant to KPB 17.10.100(C) to exchange the land.
Because it makes no mention of KPBC 17.10.090,16 it appears that
the KPB Assembly only contemplated that KPBC 17.10.100(C) would
apply to this transaction.
Third, it appears that the KPB Assembly roughly modeled
its procedure for exchanging borough land after the State of
Alaskas procedure for exchanging state land. Alaska Statute
29.65.090, which governs land exchanges, provides:
The director and a municipality are
authorized to exchange land or interests in
land when it is in the public interest. Land
or interests in land exchanged under this
section must be of approximately equal value,
including the nonmonetary value of public
benefits.
Alaska Statute 38.50.020(a) provides:
If the director determines that the property
to be exchanged is not equal in appraised
fair market value or if the value cannot be
ascertained with reasonable certainty, the
director may enter into an exchange on a
finding that the appraised fair market value
of the property to be received, together with
the value of other public benefits, equals or
exceeds the value of the property which the
state will relinquish.
These statutes parallel the language of KPBC 17.10.100(C), which
is quoted above, and KPBC 17.10.120(D), which provides:
The assembly may authorize the sale of land
for an amount other than fair market value
only if the ordinance authorizing the sale
contains: (1) A finding that the sale for an
amount other than the fair market value is in
the best public interest; (2) A statement of
the facts on which the finding is based; and
(3) The period of time during which the offer
may be accepted.
Finally, KPBC 17.10.090 provides that land must be
sold or leased at fair market value except as provided in
17.10.120(I) and 17.10.120(D). Kenai Peninsula Borough Code
17.10.120(D) expressly permits sale of borough land at less than
fair market value if it is in the best public interest.17 Thus,
even if this court were to apply KPBC 17.10.090 and KPBC
17.10.120(D) rather than KPBC 17.10.100(C), the outcome in this
case would be the same: KPB complied with KPB ordinances by
approving a land exchange based on express factual findings that
the exchange was in the Boroughs best interest.
2. The land exchange complies with KPBC 17.10.100(C).
The Boroughs power to manage and dispose of borough
land is to be liberally construed.18 Even if Cabana generates a
genuine issue of material fact, Cabana has the burden of
overcoming the presumption that proceedings of the governing body
of a municipality have been conducted in accordance with the law.19
Cabana does not satisfy this burden merely by pointing out
anomalies in the manner in which KPB appraised the land or
approved the land exchange.20 Because we conclude that the KPB
Assembly could reasonably determine that the land exchange was in
the Boroughs best interest and it provided a statement of facts
on which this finding was based, as required under KPBC
17.10.100(C), we affirm the trial courts grant of summary
judgment to KPB.
If the Borough received property that was worth
substantially less than the property it gave up and received no
other nonmonetary benefits, such an exchange arguably would not
be in the Boroughs best interest. Accordingly, it is
understandable that the plaintiffs are troubled by the Homer
parcels substantial drop in valuation from $79,200 to $33,700 in
one years time. However, given the great deference afforded
municipal action and the presumption of government regularity,
this fact, even in tandem with the plaintiffs conflicting
appraisal, does not create a genuine issue of material fact
tending to show the kind of abuse of discretion or bad faith
necessary to overcome the presumption of government regularity.21
Our decision in Norene v. Municipality of Anchorage22
supports our conclusion in this case. In Norene, we found no
abuse of discretion where the Municipality of Anchorage
authorized a controversial land exchange. The challengers
alleged that the appraisals were out of date and that one
contained a $209,000 error.23 We concluded, however, that it was
not the courts role to judge the expediency or necessity of
measures relating to local government.24 Appraisers informed the
Anchorage Assembly that the land exchange was financially sound,
and the Assembly was aware of the varying estimates of the value
of the land it was giving up and the problems with the properties
it was acquiring. Under these circumstances, we affirmed the
superior courts grant of summary judgment in favor of the
Municipality despite the factual disputes regarding the accuracy
of the appraisals or the condition of the land involved in the
exchange.25
Similarly, we conclude that the KPB Assembly is in the
best position to determine that the land exchange was in the
Boroughs best interest. There is evidence that, like the
municipality in Norene, KPB weighed the pros and cons of the
exchange prior to approving it. The planning director candidly
informed the mayor that [p]otential negative impacts to the
borough for this exchange include the simple loss of value
($33,500 vs. $24,500) and setting of preceden[t] for resolving
land use conflicts through exchanges or purchases. But she
justified her recommendation that the mayor approve the exchange
by listing the same findings of fact as those ultimately adopted
by the KPB Assembly in Ordinance 99-17. Those findings indicated
that the exchange was in the Boroughs best interest based on the
value of the properties and the nonmonetary benefits of the
exchange.26
Moreover, the undisputed evidence indicates that the
Borough complied with the KPB Code in approving the exchange.
The Borough based its approval of the exchange on an appraisal by
a qualified appraiser.27 The appraisal of the Homer parcel was
performed as part of a comprehensive program undertaken for a
period of ten months, in which 13,000 parcels were reappraised.
Many of the prior appraised values were adjusted, some
substantially. Only after these appraisals were completed did
the planning department contact the assessing department
regarding the Homer and Shafer parcels. On February 1, 1999, the
appraisal manager stated that the appraisals of the Homer and
Shafer parcels were still accurate. The fact that the value of
the Homer parcel was appraised before the assessing department
was informed of the proposed exchange tends to indicate that the
Borough acted in accordance with the law, and Cabana has
presented insufficient evidence to support its position that the
appraisal and exchange process in this case violated the KPB
Code.
In sum, the land exchange effected by Ordinance 99-17
satisfies KPBC 17.10.100(C)s requirement that the ordinance
authorizing the exchange sale contain[ ] a finding that the
exchange sale is in the best interests of the borough and a
statement of the facts on which the finding is based.
B. KPBs Approval of the Land Exchange Does Not Violate
Cabanas Right to Substantive Due Process.
Substantive due process is denied when a legislative
enactment bears no reasonable relationship to a legitimate
governmental purpose.28 As discussed above, the KPB Assembly made
several factual findings regarding the benefits to KPB of the
land exchange. For example, KPB Ordinance 99-17 indicates that
the exchange will reduce a land use conflict and protect the
public safety and welfare by restricting future use of the Homer
parcel. These are legitimate governmental purposes, and they are
laid out in goal 5.5 of the Boroughs comprehensive plan to reduce
land use conflicts and in KPBC 17.10.010.29 Cabana has offered
no evidence that reducing land use conflict and protecting public
welfare and safety are not legitimate governmental purposes.
Ordinance 99-17 bears a fair and substantial
relationship to the Boroughs policy of reducing land use
conflicts and protecting public welfare and safety. A land use
dispute existed over Clifford Shafers application to operate a
material site on his property in Anchor Point. Numerous members
of the public voiced their opposition to granting Shafer a
material site permit and the Coastal Consistency Commission
initiated a review of the potential impact of a material site on
the Shafer parcel. Shafer approached the Borough to exchange his
property, which is one-half wetlands and is in a primarily
residential neighborhood, with KPBs parcel in Homer, which is one-
third wetlands and abuts an asphalt plant, the borough landfill,
and a State Department of Transportation maintenance yard.
Although there was public opposition to the exchange, the KPB
Assembly mitigated the potential harm to neighbors of the Homer
parcel by imposing restrictions on its use and by classifying the
Homer parcel as light industrial rather than heavy industrial.
The elected borough assembly, rather than the courts,
should decide between competing notions of public policy.30 We
conclude that there is a fair and substantial relationship
between KPBs approval of the land exchange and the legitimate
governmental goals of reducing land use conflicts and protecting
public health and safety. Therefore, the alleged factual
disputes proffered by Cabana are immaterial and summary judgment
was properly granted in favor of KPB on the substantive due
process claim.
C. The Appraisal of the Homer Parcel Did Not Violate the
KPB Code or Substantive Due Process by Failing To
Account for the Light Industrial Classification.
Cabana next argues that the KPB Assembly based its
approval of the land exchange on an appraisal of the Homer parcel
that failed to account for the reasonably probable classification
of that parcel as light industrial. KPB argues that the
classification would not have impacted the value placed on the
Homer parcel by the KPB Assessing Department. The record
supports this assertion.
Gary Fandel, the appraisal manager and appraiser Louise
Pauls supervisor at the time of the valuation, stated in his
deposition that the Homer parcel is in an unzoned area. He
testified that an industrial classification in an unzoned area
does not affect the valuation by the assessing department. He
added that unzoned vacant or raw land is valuated by direct sales
comparison, whereas land in a zoned area is appraised by
accounting for the potential for development.31 The Director of
Assessing, Jim Lawyer, also stated in his affidavit that the
Shafer and Homer parcels are both in unzoned areas. He testified
that the assessing department would not have any reason to change
the appraised value of the Homer parcel for 2000 from its 1999
value. The undisputed evidence indicates that industrial
classifications do not affect KPBs valuations of land in an
unzoned area and the Homer parcel was in an unzoned area.
Therefore, we need not determine whether Paul accounted for the
light industrial classification in appraising the Homer parcel.
KPBs procedures for appraising land comply with the KPB
Code. Kenai Peninsula Borough Code 17.10.250(J) defines fair
market value as the estimated price that land would bring in an
open market and under the then prevailing market conditions in a
sale between a willing seller and a willing buyer both conversant
with the property and with prevailing general price levels. Jim
Lawyer described in his affidavit the actual practice of the KPB
Assessing Department in appraising land:
When establishing a value for a parcel
current market sales are used to determine
fair market value. Current market sales take
into consideration the market trends in a
neighborhood. Establishing the value of a
piece of raw land which is adjacent to
industrial uses would take the surrounding
trends and land use into consideration.
Cabana offered no evidence that Paul acted
inconsistently with what appears to be a policy of excluding from
consideration potential industrial classifications when
appraising a parcel of land in an unzoned area, or that any KPB
ordinance forbids this practice. Rather, Cabana relies on
Martens v. State, in which we stated that it is a well
established rule of law that a jury, in determining the fair
market value of condemned land, may consider zoning changes which
were reasonably probable at the time the land was taken.32
However, Martens is not controlling because here it is KPB rather
than a jury that determined fair market value and Cabana has not
overcome the presumption of government regularity.
Cabana has failed to establish that Paul was not
qualified or that the appraisal procedures were flawed. We
therefore conclude that KPBs failure to consider the subsequent
light industrial classification of the Homer parcel did not
violate the KPB Code or Cabanas right to substantive due process.
V. CONCLUSION
A presumption of government regularity applies in this
case and we defer to the factual determinations of the KPB
Assembly. Cabana has failed to establish that there is a factual
dispute regarding KPBs appraisal procedures or that its
procedures violate the KPB Code or substantive due process.
Accordingly we AFFIRM the superior courts order granting summary
judgment to KPB.33
_______________________________
1 Under KPB Ordinance 96-14, a material site is defined
as an area used for extracting, quarrying, stockpiling, or
conditioning gravel, sand, rock, peat, pumice, pumicite, cinders,
clay sod, topsoil, or other similar resources.
2 In the two weeks before Ordinance 99-17 was introduced,
the Kachemak Bay Advisory Planning Commission (KBAPC) and the KPB
Planning Commission each held a public meeting regarding the
classification of the Homer parcel. The three plaintiffs and
other members of the public voiced their concerns regarding the
development of the wetlands, wildlife protection, noise, water
contamination, and fears that the entire area will become
industrial. The KBAPC passed a motion to support Ordinance 99-17
with the proviso that the parcel be classified light industrial
with a variance to accommodate gravel storage, that a 100-foot
buffer be maintained, and that the wetlands not be filled,
dredged, or developed except for road access. The KBAPC noted
that the Light Industrial classification reflects the wishes of
the public. The KPB Planning Commission approved the proposal to
recommend to the KPB Assembly the light industrial classification
with a variance, which led to the Assemblys passage of Resolution
99-050 and Ordinance 99-17.
3 Prior to filing this suit, the plaintiffs raised the
same issues in an administrative appeal to the superior court
challenging the classification (Resolution 99-050) and the land
exchange (Ordinance 99-17). In September 1999 the superior court
dismissed the appeal as an inappropriate appellate challenge of
legislative action. The plaintiffs appealed and we affirmed, but
specifically permitted Cabana to obtain review of KPBs
classification decision through this action. Cabana v. Kenai
Peninsula Borough, 21 P.3d 833, 836 n.12, 838 (Alaska 2001).
4 United Airlines, Inc. v. Good Taste, Inc., 982 P.2d
1259, 1262 (Alaska 1999); Jackinsky v. Jackinsky, 894 P.2d 650,
654 (Alaska 1996).
5 Alaska R. Civ. P. 56(c); accord Jackinsky, 894 P.2d at
654.
6 Jackinsky, 894 P.2d at 654.
7 Hoffman Constr. Co. of Alaska v. U.S. Fabrication &
Erection, Inc., 32 P.3d 346, 351 (Alaska 2001).
8 See Thoma v. Hickel, 947 P.2d 816, 818 (Alaska 1997);
see also Chilton-Wren v. Olds, 1 P.3d 693, 696 (Alaska 2000);
Ellis v. City of Valdez, 686 P.2d 700, 702 (Alaska 1984). The
fact that the issue of fair market value is essential to the
resolution of both parties motions for summary judgment does not
alter our obligation to draw all inferences of fact relevant to
the cross-claim for summary judgment, including the fair market
value issue, in favor of Cabana.
9 Peterson v. Wirum, 625 P.2d 866, 869-70 (Alaska 1981).
10 Meyer v. State, Dept of Revenue, Child Support
Enforcement Div. ex rel. N.G.T., 994 P.2d 365, 367 (Alaska 1999).
11 Bauman v. Day, 892 P.2d 817, 826 (Alaska 1995).
12 Cabanas complaint does not list causes of action
separately. The superior court correctly interpreted the
plaintiffs complaint as alleging a violation of substantive due
process, a violation of the KPB Code, and improper zoning.
Cabana now concedes that the classification was not an exercise
of zoning power and so we need not reach that issue.
13 Ron Johnson submitted an expert affidavit that the
Homer parcel has a value of $56,000 to $64,000, which conflicts
with KPBs appraisal of $24,500. In addition, the Homer parcel
was valuated at $79,200 for every year from 1994 to 1998. But in
1999 Louise Paul appraised the Homer parcel at $33,700.
14 Cf. Whaley v. State, 438 P.2d 718, 720 (Alaska 1968)
(holding that a factual question is considered material and
thereby prevents the entry of summary judgment if, as a matter of
law, the appellant would then have a basis for a claim).
15 AS 29.35.010(8).
16 In a memorandum to the mayor recommending the land
exchange, Planning Director Lisa Parker wrote:
Rationale
17.10.090 states, The assembly may by
ordinance authorize the exchange of land but
only if the ordinance authorizing the
exchange sale contains a finding that the
exchange sale is in the best interests of the
borough and a statement of the facts on which
the finding is based.
Parker quotes the best interests language of KPBC 17.10.100(C),
but asserts that it is from KPBC 17.10.090. Her intention to
apply KPBC 17.10.100(C) is subsequently made clear in an almost
identical memorandum to the mayor in which she correctly cites
that section.
17 KPBC 17.10.120(D) provides:
The assembly may authorize the sale of land
for an amount other than the fair market
value only if the ordinance authorizing the
sale contains:
1. A finding that sale for an amount other
than fair market value is in the best
public interest;
2. A statement of facts on which the
finding is based; and
3. The period of time during which the
offer may be accepted.
18 AS 29.35.400.
19 McCormick v. City of Dillingham, 16 P.3d 735, 738
(Alaska 2001) (internal citation and quotation omitted). We
first applied the presumption of government regularity in
Liberati v. Bristol Bay Borough, 584 P.2d 1115, 1117 (Alaska
1978), where we affirmed the superior courts order of summary
judgment in favor of the Borough on a claim attacking a borough
ordinance imposing a sales tax on all raw fish caught within the
borough. We held that the plaintiffs, the nonmoving party,
failed to offer any evidence to overcome the presumption that the
municipality complied with the statutory requirements for a
public hearing by making copies of the tax ordinance available
and hearing all persons who wish to be heard. Id. In City of
St. Marys v. St. Marys Native Corp., 9 P.3d 1002, 1007-08 (Alaska
2000), we again applied the presumption in holding that the
municipality could repeal a tax exemption by ordinance without
public vote. Finally, in McCormick, 16 P.3d at 738, we held that
the plaintiff had failed to present sufficient evidence to
overcome the presumption that the city lawfully passed its sales
tax.
20 See McCormick, 16 P.3d at 738-39 (Although McCormick
can point to anomalies in the codification of the sales tax in
1977, he has not established that the city failed to comply with
the law.).
21 See Norene v. Municipality of Anchorage, 704 P.2d 199,
202 (Alaska 1985) (reviewing for abuse of discretion
municipalitys decision to consummate land exchange based on
allegedly erroneous appraisals of land in question).
22 704 P.2d 199 (Alaska 1985).
23 Id. at 202.
24 Id., quoting 2 E. McQuillin, The Law of Municipal
Corporations 10.33, at 825 (3d ed. 1979).
25 Id.
26 The planning director and the KPB Assembly made the
following factual findings: (1) Shafer had applied for a material
site permit for the Shafer parcel; (2) the public was concerned
about the potential harm to the environment that would result
from the permits issuance; (3) Shafer had agreed to restrictions
on the use and development of the Homer parcel; (4) the Shafer
parcel and the surrounding area would be most appropriately used
for a single-family residence and for recreation and
preservation; (5) the Borough comprehensive plans goal is to
reduce land use conflicts; (6) the proposed exchange is of almost
equal value, excluding the value of gravel resources on the
Shafer parcel; and (7) restrictions on future use of the Homer
parcel will help protect public safety and welfare.
27 Louise Pauls name appeared as being an active appraiser
as of 1998, and in August 1999 Jim Lawyer, the Director of
Assessing, testified by affidavit that she is a certified
assessor/appraiser.
28 Norene v. Municipality of Anchorage, 704 P.2d 199, 202
(Alaska 1985).
29 KPBC 17.10.010 states:
A. It is the policy of the Kenai
Peninsula Borough to manage all borough owned
and municipal entitlement lands and resources
to provide for:
1. The efficient acquisition,
management, classification and disposal of
borough lands;
2. The promotion of orderly
development;
3. The protection and orderly
management of the boroughs natural resources;
4. The preservation of borough
lands and resources for wildlife habitat,
scenic value, recreational needs, and
historic needs;
5. The retention of borough lands
essential for health, safety and education
needs;
6. The orderly disposal of lands
and resources in a manner which is fair to
all.
30 Id.
31 Cabana notes that Lawyer testified that commercially
zoned property would have a higher appraised value than
residential zoning. Because Cabana does not dispute that the
Homer parcel is not commercially zoned, this testimony is
irrelevant.
32 554 P.2d 407, 409 (Alaska 1976).
33 Cabana argues that KPB violated the publication and
notice requirements of KPBC 01.12.040 and KPBC 01.12.020.
Because Cabana failed to raise this issue below, we do not
consider it here. See Krossa v. All Alaskan Seafoods, Inc., 37
P.3d 411, 418-19 (Alaska 2001).
