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Friends of Cooper Landing v. Kenai Peninsula Borough (11/07/2003) sp-5749
Friends of Cooper Landing v. Kenai Peninsula Borough (11/07/2003) sp-5749
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
FRIENDS OF COOPER LANDING, )
) Supreme Court No. S-10581
Appellant, )
) Superior Court No.
v. ) 3KN-00-277 CI
)
KENAI PENINSULA BOROUGH, ) O P I N I O N
)
Appellee. ) [No. 5749 - November 7, 2003]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Jonathan H. Link, Judge.
Appearances: James N. Reeves, Dorsey &
Whitney LLP, Anchorage, for Appellant. Holly
B. Montague, Assistant Borough Attorney,
Soldotna, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
PER CURIAM
I. INTRODUCTION
Friends of Cooper Landing (Friends) appeals a superior
court's dismissal of an appeal from a decision rendered by the
Kenai Peninsula Borough Board of Adjustment. The superior court
dismissed the case citing lack of jurisdiction under our decision
in Cabana v. Kenai Peninsula Borough.1 Because Friends appeals
an adjudicatory decision rather than a legislative one, we
reverse the superior court's dismissal and remand the case to be
heard on its merits.
II. FACTS AND PROCEEDINGS
At a meeting in October 1998 the Kenai Peninsula
Borough Planning Commission Plat Committee approved the Sunrise
View Revised Preliminary Plat for development of a parcel of land
between Sunrise and Cooper Landing on the north side of the
Sterling Highway. Friends appealed the Plat Committee's decision
to the full Planning Commission, stating twenty-one points on
appeal. The Commission staff addressed each of the twenty-one
points. The Commission voted to concur with and accept the
comments and recommendations of the staff, thereby denying the
appeal by Friends.
Friends appealed the Planning Commission's decision to
the Borough Board of Adjustment alleging that the Commission
failed to adequately consider each of the twenty-one points
appealed and requesting that all points of appeal be remanded for
more thorough consideration. The Borough Assembly, meeting as a
Board of Adjustment, heard arguments regarding this appeal on
April 21, 1999. The Board issued a decision and findings of fact
on May 4, 1999. The Board denied the appeal with respect to
Points 7, 16, 17, and 19, and remanded the remaining points to
the Planning Commission for findings on each.
On remand, the Planning Commission considered the
points and issued findings in support of their responses to
Friends's concerns during two meetings held in June and July
1998. Friends again appealed to the Borough Board of Adjustment.
The Board voted to deny this second appeal after a
February 2000 hearing. The Board's decision was accompanied by a
set of factual findings responding to the specific points of
appeal stated by Friends.
Friends appealed the Board of Adjustment's decision to
the superior court. The Borough filed a motion to dismiss the
appeal. The superior court granted this motion, citing a lack of
jurisdiction under our decision in Cabana v. Kenai Peninsula
Borough.2
Friends appeals.
III. DISCUSSION
The superior court relied upon our decision in Cabana
when it dismissed Friends's appeal. This reliance was misplaced.
In Cabana we upheld a dismissal of an appeal from a borough
assembly decision on the grounds that the superior court lacked
jurisdiction to hear the appeal.3 The appellant in Cabana
appealed the assembly's resolution that classified a parcel of
land and the assembly's ordinance that effected an exchange of
one parcel for another.4 We concluded "that classification of
municipal land, like small-scale rezoning, [should] be treated as
a legislative decision. Because the decision of a legislative
body is subject to review by appeal only where the decision is a
quasi-judicial one, the superior court correctly dismissed
Cabana's appeal."5
The instant case, like Cabana, involves land
classification. Unlike Cabana, the instant case entails an
appeal of a board of adjustment's adjudicatory decision rather
than a borough assembly's legislative decision. That the Board
of Adjustment and the Borough Assembly have the same members does
not render inconsequential the difference between the separate
acts and decisions of each body. The Board of Adjustment hears
appeals of Planning Commission decisions and renders adjudicative
responses to those appeals,6 while the Borough Assembly
promulgates land use policy through legislative acts and
decisions.7 Both state law and the borough code explicitly
permit an appeal to the superior court of a decision by the Board
of Adjustment.8
IV. CONCLUSION
Accordingly, we REVERSE the superior court's dismissal
of Friends's appeal and REMAND the case to the superior court for
a determination on the merits.
_______________________________
121 P.3d 833 (Alaska 2001).
2Id.
3Id. at 835-36.
4Id. at 835.
5Id. at 836 (footnote omitted).
6Kenai Peninsula Borough Code (KPB) 21.20.230.
7KPB 17.10.080 & 22.40.190.
8AS 29.40.060 requires borough assemblies to provide for an
appeal to the superior court by a person aggrieved by a board of
adjustment decision, and asserts that such an appeal is an
administrative one. KPB 21.20.360 states: "Pursuant to AS
29.40.060, appeals from the final written decisions of the board
of adjustment shall be filed with the State of Alaska Superior
Court at Kenai, Alaska, and shall conform with the Rules of
Appellate Procedure of the State of Alaska, Part VI."
