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Spinell Homes, Inc. v. Municipality of Anchorage (8/22/2003) sp-5731
Spinell Homes, Inc. v. Municipality of Anchorage (8/22/2003) sp-5731
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
SPINELL HOMES, INC., )
) Supreme Court No. S-10546
Appellant, )
) Superior Court No. 3AN-99-
6602 CI
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
) [No. 5731 - August 22, 2003]
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John E. Reese, Judge.
Appearances: David J. Schmid and Eric R.
Cossman, Law Offices of David J. Schmid,
Anchorage, for Appellant. Steven S.
Tervooren, Hughes, Thorsness, Powell,
Huddleston & Bauman, LLC, Anchorage, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
A homebuilding company challenges conditions the
Municipality of Anchorage imposed on the issuance of building
permits and certificates of occupancy for certain homes. Because
the Anchorage Municipal Code gave the municipality the authority
to impose the challenged conditions, we affirm the decision of
the superior court denying the plaintiff's motion for summary
judgment and granting summary judgment to the municipality.
II. FACTS AND PROCEEDINGS
Spinell Homes, Inc. constructs houses on property it
acquires; it then sells the completed homes to third-party
purchasers. Spinell must obtain a building permit from the
Municipality of Anchorage before constructing a home in
Anchorage.1 After completing the home, Spinell must obtain a
certificate of occupancy from the municipality before the
structure can be occupied.2
Between 1995 and 1999 Spinell purchased from various
development corporations all or large parts of five residential
subdivisions in Anchorage: the Michael Subdivision, the Ponds
Subdivision, the Independence Park Subdivision, the Ridgemont
Subdivision, and the Muirwood Park Subdivision. The original
subdividers of those tracts had entered into subdivision
agreements with the municipality as required by the Anchorage
Municipal Code (AMC).3 The code required that these subdivision
agreements contain specified information, including a designation
of public improvements to be constructed by the subdivider and by
the municipality, and the specifications and scheduled completion
dates for those improvements.4
The original subdivider for the Michael Subdivision
entered into a subdivision agreement with the municipality to
construct and install certain public improvements, including
streets, sidewalks, curbs, gutters, and drainage. Spinell
eventually acquired all the lots in the Michael Subdivision from
Columbia Investments, Inc., another subdivider. Columbia and
Spinell agreed that Columbia would construct all of the
improvements for the subdivision in accordance with the
Municipality's Standard Specifications (MASS). But Columbia
failed to complete the improvements to MASS standards.
After Spinell acquired the Michael Subdivision, it
applied to the municipality for building permits to construct
homes. The municipality refused to issue any building permits
for lots in the Michael Subdivision until the streets were
constructed to MASS specifications. Spinell demanded that
Columbia construct the streets to MASS standards, but Columbia
refused. The municipality then proposed to Spinell that it would
conditionally accept the streets even though they did not meet
MASS standards if Spinell would warrant the streets for five
years and post a $100,000 guarantee bond. Spinell provided the
warranty (in the form of two trust deeds), and the municipality
then issued building permits to Spinell for the Michael
Subdivision.
The original subdividers in the Michael, Ponds, and
Independence Park Subdivisions had each entered into subdivision
agreements with the municipality which obligated them to dedicate
and construct public improvements, including landscaping
easements. Buffer landscaping easements listed on the plat notes
burdened some lots in each subdivision.
The municipality refused to issue Spinell final
certificates of occupancy (and, in a few instances, building
permits) for lots burdened with buffer landscaping easements
until the landscaping was installed. For lots on which the
municipality withheld final certificates of occupancy, it issued
temporary certificates and conditioned final certificates on
installation of the landscaping. These temporary certificates
allowed the homes to be occupied and enabled Spinell to sell the
homes, but they affected the buyer's ability to obtain
conventional financing for the homes or re-sell them before final
certificates were issued.
The municipality also required Spinell to install "on
lot" landscaping on some individual lots in the Michael and
Ridgemont Subdivisions. The plat notes for those lots required
the installation of landscaping - in many cases, two or three
trees per lot. The municipality issued conditional certificates
of occupancy for the homes built on these lots but refused to
issue final certificates until the on-lot landscaping was
installed.
As a condition for issuing building permits for two
lots in the Ridgemont Subdivision, the municipality required
Spinell to obtain written approval for the design of its proposed
homes from the Independence Park Community Association Design
Review Committee, which both parties describe as a homeowners'
association. Spinell obtained this permission and the
municipality issued the building permits.
As a condition of issuing a building permit for one lot
in the Muirwood Park Subdivision, the municipality required
Spinell to obtain written verification from the original
subdivider that Spinell had disturbed no living trees. Spinell
presumably met this requirement because the municipality issued
the building permit.
In 1999 Spinell filed a complaint against the
municipality for inverse condemnation, and also alleged under 42
U.S.C. 1983 that the municipality had violated Spinell's rights
to substantive due process and equal protection and had effected
a taking. Spinell sought (1) a declaratory judgment ordering the
municipality to issue the relevant final certificates of
occupancy, reconvey the performance bond for the Michael
Subdivision, and install buffer landscaping and all other public
improvements on the Michael Subdivision at the municipality's
expense; (2) a permanent injunction preventing the municipality
from imposing on the issuance of building permits and
certificates of occupancy conditions that are not authorized by
the municipality's ordinances; and (3) a permanent injunction
preventing the municipality from requiring Spinell to satisfy the
obligations of a subdivider. Spinell also sought compensation
for the alleged taking, and compensatory damages in an
unspecified amount greater than $100,000.
After the superior court granted in part and denied in
part the municipality's motion to dismiss, both parties moved for
summary judgment. The superior court determined that Spinell's
constitutional claims "are predicated on whether the Municipality
wrongfully denied Spinell's request for building permits and
certificates of occupancy." The court then held that the
municipality had authority to require Spinell to comply with
municipal requirements as a condition for issuing the permits and
certificates. It granted the municipality's summary judgment
motion and denied Spinell's summary judgment motion.
Spinell appeals.
III. DISCUSSION
A. Standard of Review
The parties dispute the standard of review. Spinell
argues that we should apply our customary de novo standard to a
grant of summary judgment. The municipality argues that we
should apply the standard of review that we use for examining
administrative decisions, on the theory that this case involves
the review of "administrative decisions involving complex issues
that require agency expertise." It relies on our statement in
Ellis v. State, Department of Natural Resources that in those
situations, we will defer to the agency's determination "so long
as it is reasonable, supported by the evidence in the record as a
whole, and there is no abuse of discretion."5 The municipality
argues that "[t]he interpretation of the platting and zoning code
provisions by Anchorage, and more particularly by those officials
charged with their enforcement, is entitled to substantial
deference."
Because, as we explain below, the municipality prevails
on appeal even under the less deferential de novo standard of
review, we do not need to decide whether the more deferential
standard advocated by the municipality applies here. We will
apply a de novo standard of review to the superior court's grant
of summary judgment to the municipality and denial of summary
judgment to Spinell, and will uphold a grant of summary judgment
if either party meets the customary standards for summary
judgment.6 There must be no genuine issues of material fact, and
the moving party must be entitled to judgment as a matter of law.7
B. The Municipality Had Authority To Impose the
Conditions and Requirements.
1. AMC 21.15.120(E) empowers the
municipality to enforce plat notes against
Spinell.
Spinell argues that the municipality has no authority
to require Spinell to construct and warrant streets or install
landscaping as a condition for a building permit or certificate
of occupancy. It asserts that the conditions the municipality
imposed on the issuance of building permits and certificates of
occupancy were only binding on the subdivider of the property.
Spinell argues that because it was not the subdivider of any of
the properties at issue, the municipality could not require
Spinell to construct and warrant streets or install landscaping
in order to receive a building permit or certificate of
occupancy. We conclude that whether Spinell was the subdivider
is irrelevant, because AMC 21.15.120(E) gives the municipality
authority to enforce the plat notes and plot notes against
Spinell. The municipality did not have to issue building permits
or certificates of occupancy as long as the requirements listed
on the plat notes were unfulfilled.
Subsection 21.15.120(E) of the Anchorage Municipal Code
authorizes the platting authority to place conditions on the
final approval of a subdivision plat.8 The platting authority
indicates those conditions through notations on the plat.
Subsection .120(E) provides that these notes become restrictive
covenants in favor of the municipality that run with the land.
Spinell attempts to distinguish the conditions and requirements
the municipality imposed here from the conditions and
requirements running with the land under the code. It argues
that the disputed conditions and requirements do not fall within
subsection .120(E) and do not run with the land, but instead are
"personal obligation[s] imposed on the subdivider by the platting
board." Spinell notes that the subdivider must post a
performance bond to guarantee the installation of the
landscaping, and argues that this condition is a personal
obligation rather than a restrictive covenant running with the
land. Spinell then argues that it is not a subdivider and does
not stand in the place of a subdivider but is merely a subsequent
lot owner.
The municipality argues that under AMC 21.15.120(E),
"[o]nce the landscaping requirements were set forth on the
recorded plat, they became a restrictive covenant, and the land
could not be occupied or maintained in a fashion which failed to
meet the terms of the plat note." We agree. Subsection .120(E)
clearly states that plat notes "may be enforced against the
subdivider or any subsequent owner by the municipality." The
municipality was not obliged to issue building permits and
certificates of occupancy to Spinell or anyone else if the
conditions and requirements in the plat notes had not been met.
2. The municipality was not required to
issue permits and certificates under the Uniform
Administrative Code, Uniform Building Code, or
Anchorage Municipal Code.
Spinell argues that the Anchorage Municipal Code, the
1997 Uniform Administrative Code (UAC), and the 1997 Uniform
Building Code (UBC)9 required the municipality to issue a
building permit or certificate of occupancy whenever an applicant
"complies with the administrative and technical requirements
provided in the building codes, and the proposed structure
constitutes a permitted use of the property under the applicable
zoning ordinances." The municipality responds that these codes
do not obligate it to issue permits or certificates if the
building official finds any violations of those codes or any
other laws.
Uniform Administrative Code 303.1, which governs the
issuance of building permits, states in part:
The application, plans, . . . and other data
filed by an applicant for permit shall be
reviewed by the building official. Such
plans may be reviewed by other departments of
this jurisdiction to verify compliance with
any applicable laws under their jurisdiction.
If the building official finds that the work
described in an application for a permit and
the plans, specifications and other data
filed therewith conform to the requirements
of this code and the technical codes and
other pertinent laws and ordinances, and that
the fees specified in Section 304 have been
paid, the building official shall issue a
permit therefor to the applicant.
Uniform Administrative Code 309.3, which discusses
certificates of occupancy, states in part:
After the building official inspects the
building or structure and finds no violations
of the provisions of this code or other laws
which are enforced by the code enforcement
agency, the building official shall issue a
certificate of occupancy. . . .
Spinell argues that these provisions obligated the
building official to issue building permits and final (rather
than temporary) certificates of occupancy.10 Similarly, the
handbook's commentary to the certificate of occupancy provisions
explains that the building official must issue a certificate
"when the building official is satisfied that the building or
portion thereof complies with the code for the intended use and
occupancy." Id. at 4. It is undisputed that Spinell's
applications for building permits and certificates of occupancy
complied with administrative and structural requirements for the
homes it constructed or planned to construct. It is also
undisputed that building the single-family homes Spinell
constructed or planned to construct was a permissible use of the
land under the applicable zoning ordinances. Spinell asserts
that the only requirements that it failed to meet were the
additional public improvement conditions the municipality
imposed. Spinell argues that the AMC did not authorize these
requirements for completing public improvements, and that
therefore the building official should have issued the permits
and certificates.
But under UAC 309.3, the municipality does not have
to issue a certificate of occupancy if there are any violations
of any provisions of the AMC, the UAC, UBC, or the plat notes. A
final certificate of occupancy is essentially a guarantee to
third parties that the building official inspected the completed
project and found no violations of any ordinance, plat note, or
building or zoning code.11 The municipality characterizes
Spinell's argument as "ask[ing] this court to . . . compel
Anchorage to perpetrate widespread fraud upon homebuyers,
lenders, title companies, and others" by forcing the municipality
to issue final certificates of occupancy despite Spinell's
violations of the plat notes. Spinell would have the
municipality ignore violations of the plat notes and issue
building permits and certificates of occupancy as long as Spinell
did not commit those violations. We do not think the UAC, UBC,
and AMC require this result.
It is irrelevant to our analysis whether the
landscaping had to be installed by Spinell or its predecessors in
interest in each of the subdivisions. Our analysis turns on the
circumstance that the plat notes contain a restrictive covenant
that runs with the land, is tied to the certificate of occupancy,
and states that landscaping will be installed in the subdivision.
Spinell had both constructive and actual notice of those
provisions. The sales agreement for Spinell's purchase of the
Muirwood Park Subdivision, for example, contained a handwritten
note initialed on behalf of Spinell stating that "[t]his
agreement is contingent on the buyer Spinell Homes reviewing and
approving the requirements of platting and plat notes." Also
illustrative is the plot plan Spinell submitted for a lot in the
Ponds Subdivision which indicated where buffer landscaping would
be installed and which stated that "[a]ll work shall be done as
shown on this plot plan." When the platting authority placed
notes on the relevant plats indicating the landscaping
requirements, Spinell was placed on constructive notice of those
requirements.
Plat notes are covenants that run with the land and are
enforceable by the municipality against subsequent owners. The
certificate of occupancy is an administrative enforcement tool
that enables the municipality to ensure compliance with all laws,
conditions, and obligations. Landscaping requirements in
Anchorage have historically been tied to the issuance of
certificates of occupancy.12 Because the conditions had not been
fulfilled, the municipality was not obligated to issue a
certificate of occupancy.
3. The performance bonds do not require the
municipality to issue building permits and
certificates of occupancy.
Spinell argues that per AMC 21.87.055,13
once the municipality accepts a performance bond
from a subdivider to guarantee the installation of
public improvements, the municipality's only
remedy when improvements are not completed is to
proceed against the performance bond, not to deny
a certificate of occupancy or building permit.
Spinell points to commentary supporting this
position:
Where a subdivision plat has been approved by
the planning board and a bond to assure
improvement of the streets and other required
installations has been furnished, a building
permit cannot be withheld on the ground that
the street has not been "suitably improved as
required by the planning board," as required
by a collateral statute. It is contemplated
that permits will issue once the bond is
furnished, and the map approved and filed.[14]
Relying on this language, Spinell
argues that the municipality had to complete
the subdivision improvements - particularly
the streets in the Michael Subdivision - at
its own expense. Spinell claims that the
municipality had no authority to withhold
building permits or certificates of occupancy
from Spinell merely because the improvements
had not been constructed. Spinell also cites
to a Maryland case in which a developer
acquired two subdivision lots from a prior
developer who had posted a performance bond
to guarantee the improvement of a road
adjoining the subdivision.15 The defendant
county issued building permits to the new
developer, which began construction. Later,
the county threatened to withhold
certificates of occupancy until the public
improvements were completed. The Maryland
Court of Special Appeals ruled that the
county could not withhold certificates of
occupancy from the new developer once the new
developer met the county's building
regulations, but could only proceed against
the initial developer's performance bond.16
The court explained that "[i]t would make no
sense to require posting of a bond if the
performance itself were nonetheless required
as a necessary predicate to issuance of the
necessary permits."17
But here, the subdivision agreement
for the Michael Subdivision between the
municipality and the initial subdivider
expired in 1990, and Spinell did not purchase
the subdivision until 1996. It appears
undisputed that the municipality could not
proceed against the bond posted by the
initial developer. The municipality argues
in its brief that it could not look to the
bond from the original subdivider because
that bond had expired and the original
subdivider was now defunct. Spinell's reply
brief does not rebut that contention. There
is no basis for us to think that the original
subdivider's bond is still in effect.
Furthermore, as the municipality
observes, the language in AMC 21.87.055
regarding default by the subdivider is
permissive rather than mandatory. That
provision states that in the event of a
default by the subdivider the municipality
"may" demand payment.18
The AMC does not require the
municipality to use public funds to complete
subdivision improvements for the benefit of
private lot owners when the original
subdivider abandons the project and goes out
of business, as the original subdivider did
here. The AMC only requires that if the
municipality obtains any funds from the
performance bonds, it apply those funds
towards the construction and installation of
the improvements. The municipality had no
obligation to accept streets in the Michael
Subdivision that did not meet its standards
or to repair them at public expense.
4. AMC 21.45.125(D) does not
prevent the municipality from
conditioning certificates of occupancy
on the installation of landscaping.
Spinell next argues that AMC 21.45.125(D) prevents the
municipality from withholding final certificates of occupancy
pending the installation of landscaping. Subsection
21.45.125(D), which appears in the AMC chapter titled
"Supplementary District Regulations," states that "[a]ll
landscaping shall be installed within 18 months after receiving a
temporary or final certificate of occupancy, whichever comes
first."
But AMC 21.85.190, which appears in the code chapter
titled "Subdivision Standards: Improvements," states in part that
"[l]andscaping shall be provided on an individual lot basis not
later than the issuance of a certificate of occupancy." Spinell
advances a strained interpretation of AMC 21.85.190 in an effort
to harmonize the two code provisions. Spinell claims that
section .190 "makes clear that it is the issuance of the
certificate of occupancy that triggers the subdivider's deadline
to install the landscaping, and not the other way around."
Spinell argues that the date a certificate of occupancy is issued
merely "establishes . . . the date of default of the subdivider's
obligation to install the landscaping." We disagree. Section
.190's location in the AMC chapter on subdivision improvements
indicates that it controls the timing for the installation of
landscaping improvements in subdivisions. The section requires
the installation of landscaping before the municipality issues a
certificate of occupancy.
5. The on-lot landscaping requirements for
the Michael Subdivision were valid.
The twelve Michael Subdivision lots that the
municipality subjected to the on-lot landscaping requirement were
zoned R-2M. On-lot (also referred to as "visual enhancement")
landscaping is not required by AMC 21.40.045(M) for lots zoned R-
2M unless the lot contains more than three dwelling units.19
Spinell argues that because the lots in the Michael Subdivision
only had single-family homes, on-lot landscaping was not
required. But although the zoning laws did not require on-lot
landscaping for the lots in the Michael Subdivision, the plat
notes for those lots did. Zoning laws set out the minimum
standards that a party must meet. More specific plat notes
control over the more general zoning requirements.20
6. Spinell has not shown that the superior
court erred concerning the requirement Spinell get
approval from the homeowners' association.
For two Ridgemont Subdivision lots, the municipality
required Spinell to obtain written approval for the design of its
proposed homes from a homeowners' association as a condition for
issuing building permits. This requirement was part of the
settlement of litigation between the municipality, the
homeowners' association, and the prior developer of the
subdivision. Spinell obtained the required permission from the
homeowners' association and the municipality issued the building
permits.
Spinell cites several authorities21 to support its
argument that "[i]t is well established that, where the proposed
building complies with the building code and zoning ordinances, a
building permit cannot be denied on the ground that the building
would violate the terms of a restrictive covenant against the
property." There is a dispute about whether the agreement bound
Spinell. But because Spinell in fact obtained permission from
the association and the municipality issued the permits, and
because Spinell has not demonstrated how it was harmed by this
requirement, there is no reason for us to decide whether the
municipality overstepped.
At most, the requirement slightly delayed the permits
(by ten and twenty-nine days). These sorts of delays do not
amount to actionable takings.22 There is no indication that
Spinell was deprived of all economically viable use of its
property or that it had to alter its design. The fact that this
condition was imposed in the context of litigation suggests that
this condition does not reflect a blanket policy of the
municipality. Instead, this appears to have been a case-specific
requirement, and we have not been provided with the specifics.
Spinell consequently has not demonstrated that the
superior court erred.23
C. Spinell's Constitutional Claims Have No Merit.
Spinell argues that the municipality violated
Spinell's right to substantive due process because the
municipality breached its mandatory duty to issue
unconditioned permits and certificates, and that the
municipality's actions were consequently arbitrary,
irrational, and not reasonably related to a legitimate
governmental purpose. It appears Spinell founds this
argument on the proposition that the municipality had
no authority to condition the permits and certificates
as it did. Thus, Spinell argues that it "has a
legitimate claim of entitlement and a protected
property interest in the building permit or certificate
of occupancy if the municipality has a mandatory duty
under its building ordinances to issue the permit if
the applicant complies with the criteria specified for
its issuance." Spinell recognizes that to maintain a
substantive due process claim, it "must establish that
it had a protected property interest in the permit or
benefit claimed to have been unconstitutionally denied
or interfered with." But because we have decided that
the municipality did not have a mandatory duty in this
case to issue Spinell unconditioned permits and
certificates, Spinell cannot establish that it had a
protected property interest in unconditioned permits
and certificates. It consequently cannot establish a
substantive due process violation.
Spinell nonetheless claims that the
municipality's actions effected a taking because they
did not substantially advance a legitimate governmental
interest. The Alaska Constitution provides that
"[p]rivate property shall not be taken or damaged for
public use without just compensation."24 The Alaska
Constitution provides greater protection for property
owners than does the Fifth Amendment of the United
States Constitution.25
Spinell first appears to argue that imposing
the conditions effected a per se taking. But "where
there has been no physical invasion of property, a per
se taking will not be found except upon a showing that
all economic value of a particular piece of property
has been destroyed."26 There is no basis for finding a
per se taking here. The municipality did not
physically invade Spinell's land and it did not
completely deprive Spinell of all economic value of its
land. Indeed, Spinell has constructed houses on many
of the lots and sold them to third parties. Moreover,
Spinell makes no effort to show that the value of its
land was at all altered by the municipality's actions.
Spinell also asserts that the municipality's
actions effected a taking on a state-law inverse
condemnation theory. Generally if there has been no
per se taking, we will engage in a case-specific
analysis to determine whether there has been a taking.27
We consider four factors (known as the Sandberg
factors): "(1) the character of the governmental
action; (2) its economic impact; (3) its interference
with reasonable investment-backed expectations; and (4)
the legitimacy of the interest advanced by the
regulation or land-use decision."28 But Spinell's
appellate takings argument does not discuss the
Sandberg factors. We recently declined to conduct a
Sandberg analysis when the landowners alleging a taking
substantively discussed only one of the factors in
their briefs.29 Spinell has not discussed any of the
factors here. Furthermore, as we noted above in
rejecting Spinell's per se takings claim, Spinell has
made no effort to show that the municipality's actions
adversely affected the value of Spinell's property.
Spinell also asserts that the municipality's
actions effected a taking based on the test established
by the United States Supreme Court in Nollan v.
California Coastal Commission30 and Dolan v. City of
Tigard.31 A Nollan/Dolan taking may arise when the
government makes "an adjudicative decision to condition
[the landowner's] application for a building permit on
an individual parcel," as opposed to a legislative
determination of general application.32 Additionally,
that individualized condition must require the property
owner to dedicate a portion of his or her property to
the public.33
But Spinell has not demonstrated that the
municipality specially required Spinell to dedicate any
property for public easements or to construct new
streets. The municipality simply required that
predetermined municipal requirements be satisfied
before it would issue permits or certificates. These
requirements were city-wide conditions that, moreover,
arose largely out of obligations accepted by Spinell's
predecessors. There is no indication Spinell was
required to do anything other developers were not
required to do to satisfy the plat notes for their
subdivisions. To have a Nollan/Dolan taking under
these circumstances, Spinell would have to demonstrate
that the original subdivider could have brought a
Nollan/Dolan takings claim. Spinell makes no such
showing. Indeed, such a claim is inherently at odds
with Spinell's argument that the original subdivider
should have been responsible for satisfying the
conditions that the municipality imposed on Spinell.
If the original subdivider could not have raised a
Nollan/Dolan claim under the circumstances of this
case, we see no basis for Spinell to do so.
Because Spinell has not shown that the
requirements for some minimal landscaping and
compliance with the MASS standards were conditions or
exactions that were not proportional to the
subdivisions' impact, Spinell's Nollan/Dolan theory of
taking is without merit.
As previously noted, the municipality did
impose two conditions that did not obviously arise out
of routine enforcement of the plat specifications or
subdivision agreement. But even assuming the
requirements of homeowners' association approval and
"living tree" verification could conceptually support a
Nollan/Dolan takings claim, Spinell's briefs fail to
show that it suffered an impact of the kind or
magnitude this theory requires. Certainly the
municipality's requirements seem to have been temporary
and insignificant restraints, at most. Spinell has not
demonstrated that these requirements forced it to
dedicate its money or property to a public use. They
did not seem to be an "exaction" of the sort
contemplated for such claims, and Spinell's briefs fail
to show that it has any actionable Nollan/Dolan claims.
Spinell's opening brief also cursorily
asserts that the municipality's actions deprived
Spinell of equal protection because the municipality
has no rational basis for imposing the street and
landscaping conditions on developers but not on other
permit applicants. As we explained above, we will not
consider an appellant's arguments given only cursory
treatment in its briefs.34
IV. CONCLUSION
We AFFIRM the decision of the superior court denying
Spinell's motion for summary judgment and granting summary
judgment to the municipality.
_______________________________
1 Uniform Administrative Code (UAC) 301.1 (1997) provides:
Permits required. Except as specified in
Section 301.2, no building, structure or
building service equipment regulated by this
code and the technical codes shall be
erected, constructed, enlarged, altered,
repaired, moved, improved, removed, converted
or demolished unless a separate, appropriate
permit for each building, structure or
building service equipment has first been
obtained from the building official.
2 UAC 309.1 (1997) provides:
Use or Occupancy. Buildings or structures
shall not be used or occupied nor shall a
change in the existing occupancy
classification of a building or structure or
portion thereof be made until the building
official has issued a certificate of
occupancy therefor as provided herein.
3 Anchorage Municipal Code (AMC) 21.87.010(A) (1996) provides:
Before a final plat for a subdivision where
improvements are required under chapter 21.85
is approved or filed, the subdivider shall
enter into a subdivision agreement with the
municipality in accordance with this chapter.
4 AMC 21.87.010(C) (1996).
5 944 P.2d 491, 493 (Alaska 1997) (quoting Kodiak W. Alaska
Airlines, Inc. v. Bob Harris Flying Serv., Inc., 592 P.2d 1200,
1203 n.7 (Alaska 1979)).
6 See Joseph M. Jackovich Revocable Trust v. State, Dep't of
Transp., 54 P.3d 294, 297 (Alaska 2002).
7 Id.
8 AMC 21.15.120(E) (1996) provides:
The platting authority may place such
conditions upon granting of final plat
approval as are necessary to preserve the
public welfare in accordance with the
subdivision regulations. When such a
condition of approval entails a restriction
upon the use of all or part of the property
being subdivided, a note specifying such
restrictions shall be placed on the face of
the plat. Such note shall constitute a
restrictive covenant in favor of the
municipality and the public and shall run
with the land, enforceable against all
subsequent owners. Any such restrictive
covenant may be enforced against the
subdivider or any subsequent owner by the
municipality or by any specifically affected
member of the public.
9 AMC 23.05.010 (1996) adopts by reference the 1997 editions
of the UAC and UBC.
10 Spinell cites the Handbook to the Uniform Building Code, the
official commentary to the UBC, to support its reading of the UAC
and UBC. The commentary explains that the building official must
issue a building permit if "the information filed with the
application shows compliance with the [UBC] and other laws and
ordinances . . . . Thus, the building official would be in
violation of the code to withhold the issuance of a building
permit for a swimming pool because a cabana was constructed
without a permit." Int'l Conference of Bldg. Officials, Handbook
to the Uniform Building Code 3 (1995).
11 3 Kenneth H. Young, Anderson's American Law of Zoning
19.03, at 362 (4th ed. 1996).
12 An April 9, 1985 memorandum to the Anchorage Assembly from
the mayor, municipal manager, and director of community planning
discussed means of enforcing buffer landscaping installation
requirements. The memorandum recognized the general practice
that "the installation of new landscaping may be tied to a
certificate of occupancy." Anchorage Assembly Memorandum AIM 55-
85.
13 AMC 21.87.055 (1996) states in part:
If the subdivider defaults on any obligation
to construct required public improvements or
the obligation to warrant and repair such
improvements, the municipality may demand
immediate payment on the performance or
warranty guarantee. . . . All funds received
by the municipality shall be used for any
construction, repair or reconstruction
necessary to ensure that: (A) [a]ll required
public improvements are built to
specifications necessary to receive final
acceptance. . . .
14 5 Arden H. and Daren A. Rathkopf, The Law of Zoning and
Planning 91.16 (2001). A footnote to the above quotation
continues:
Likewise a certificate of occupancy may not
be denied for a model home in an incomplete
subdivision where it was constructed pursuant
to a valid building permit and the developer
posted bonds for the required subdivision
improvements, even though the subdivision
regulations provide that issuance of
certificates of occupancy for such model
homes must await completion of on-site and
off-site improvements. This provision was
construed as to provide only an interim
safeguard until performance bonds
guaranteeing installation of improvements
were posted.
Id. at n.8.
15 Key Fed. Sav. & Loan Ass'n v. Anne Arundel County, 460 A.2d
86 (Md. Spec. App. 1983).
16 Id. at 91.
17 Id. at 90.
18 AMC 21.87.055 (emphasis added).
19 AMC 21.40.045(M) (1996) provides in part: "On lots in the R-
2M district containing more than three dwelling units, all areas
not devoted to buildings, structures, drives, . . . or other
authorized installations shall be planted with visual enhancement
landscaping."
20 Alaska R.R. Corp. v. Native Vill. of Eklutna, 43 P.3d 588,
593 (Alaska 2002) (explaining that more specific provisions of
statute control over more general provisions); O'Callaghan v.
Rue, 996 P.2d 88, 99 n.58 (Alaska 2000) (same).
21 8 Eugene McQuillin, The Law of Municipal Corporations
25.151, at 558 (3d ed. 2000) ("An ordinance cannot prohibit the
issuance of a building permit solely because the proposed use
will be contrary to restrictions contained in recorded covenants
applicable to the property for which the permit is sought, since
the effect of such a prohibition would be an illegal delegation
to private covenantors of the municipality's zoning power."); 3
Young, supra note 13, 20.77 at 673 ("A building permit for a
use permitted by the zoning regulations may not be denied on the
ground that the use will violate a restrictive covenant."); see
also Friends of Shawangunks, Inc. v. Knowlton, 476 N.E.2d 988,
990 (N.Y. 1985) ("[T]he issuance of a permit for a use allowed by
a zoning ordinance may not be denied because the proposed use
would be in violation of a restrictive covenant.").
22 Cf. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning
Agency, 535 U.S. 302, 321 (2002); Joseph M. Jackovich Revocable
Trust v. State, Dep't of Transp., 54 P.3d 294, 300 (Alaska 2002).
23 The fact portion of Spinell's brief also asserts that for
one Muirwood Park Subdivision lot, the municipality refused to
issue Spinell a building permit until Spinell obtained written
verification from the original subdivider that Spinell had
disturbed no living trees on the lot, but the argument portion of
its brief does not address this issue, and therefore we do not
reach it. Stosh's I/M v. Fairbanks North Star Borough, 12 P.3d
1180, 1183 (Alaska 2000) ("where a point is given only a cursory
statement in the argument portion of a brief, the point will not
be considered on appeal." (quoting Adamson v. Univ. of Alaska,
819 P.2d 886, 889 n.3 (Alaska 1991))); State v. O'Neill
Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980) ("Failure
to argue a point constitutes an abandonment of it.").
24 Alaska Const. art. I, 18.
25 R&Y, Inc. v. Municipality of Anchorage, 34 P.3d 289, 293
(Alaska 2001).
26 Id. at 296.
27 Id. at 293.
28 Id.
29 Joseph M. Jackovich Revocable Trust v. State, Dep't of
Transp., 54 P.3d 294, 303-04 (Alaska 2002).
30 483 U.S. 825 (1987).
31 512 U.S. 374 (1994).
32 Dolan, 512 U.S. at 385.
33 Id.
34 See supra note 23.
