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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pruitt v. City of Seward (01/26/2007) sp-6096
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
| JAMES T. PRUITT d/b/a SEWARD | ) |
| SHIPS ACE HARDWARE AND | ) Supreme Court No. S- 11628 |
| MARINE, | ) |
| ) Superior Court No. 3AN-03-13457 CIV. | |
| Appellant, | ) |
| ) O P I N I O N | |
| v. | ) |
| ) No. 6096 - January 26, 2007 | |
| CITY OF SEWARD, an Alaskan | ) |
| municipal corporation, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Morgan Christen, Judge.
Appearances: Ronald L. Baird, Office of
Ronald L. Baird, Anchorage, for Appellant.
Cheryl A. Brooking, Wohlforth, Vassar,
Johnson & Brecht, Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
CARPENETI, Justice, dissenting.
I. INTRODUCTION
James Pruitt applied to the City of Seward for a permit
to erect a new building in the citys industrial zone. Pruitts
building plan included a canopy over the buildings front
entrance. The city refused to grant permission to build the
canopy, claiming that the canopy was an attachment to a building
that would extend into the building setback mandated by Sewards
zoning code. Pruitt did not appeal. After Pruitt erected his
building, including the canopy, the city filed a superior court
enforcement action and argued that Pruitt could not defend in
that action because he had not exhausted his administrative
remedies. The superior court used its independent judgment to
interpret the citys zoning codes, held that Pruitt was in
violation of the zoning codes, and ordered him to remove the
canopy. We hold that, because the city did not provide him with
notice that its interpretation of the city zoning code was a
final action, the exhaustion doctrine does not foreclose Pruitt
from defending the citys enforcement action. We also hold that,
because the city effectively denied Pruitt an opportunity to
appeal its zoning decision and because the zoning code is
ambiguous, the superior court should have given him an
opportunity to submit the issue of the codes meaning to the citys
planning and zoning commission. We therefore remand with
instructions to hold the enforcement action in abeyance so Pruitt
can appeal the citys interpretation of the zoning code.
II. FACTS AND PROCEEDINGS
A. Facts
James Pruitt applied to the City of Seward for a
building permit in August 2000. Pruitt proposed erecting a pre-
fabricated building in Sewards industrial zone. The building
plan included a canopy over the front entrance of the building.
The Seward City Codes (SCC) zoning provisions require that all
structures in industrial zones be set back at least twenty feet
from the street.1 Seward City Code 15.10.140 defines setback
as:
The required minimum distance from right-of-
way or lot line that establishes the area
within which only fencing, landscaping,
driveways, parking and similar uses are
permitted. Any structure including, but not
limited to, decks, stairways, porches or
other attachments to a building are
specifically prohibited in the setback.
Building eaves are permitted to extend into
the setback a maximum of two feet.
Seward City Code 15.10.140 defines structure as:
Anything constructed or erected on the ground
or attached to something having location on
the ground, including, but not limited to,
buildings, towers, and sheds. Fences,
retaining walls less than three feet in
height, signs, and similar improvements of a
minor character are excluded.
Linda-Rae Olsen, the city clerk, sent Pruitt a letter
on August 18, 2000. It cited SCC 15.10.140, and stated that
from the building plans it appeared that the roof [eave], the
[fascia] panel, and the canopy over the store entrance would
extend into the setback. The letter indicated that Pruitts site
plan could not be approved unless he verified that:
1. The building [eaves] do not extend over
two feet into the 20 foot front yard
setback[;]
2. the store front canopy does not extend
into the 20 foot front yard setback and;
3. the [fascia] panel does not extend into
the 20 foot front yard or 10 foot side yard
setbacks.
At Pruitts request, Olsen later faxed him information on applying
for a variance from the zoning code.
Pruitts building permit was issued in October 2000. It
contained the following statement in bold print: The Canopy is
not part of this permit [and] has not been approved.
The city engineer conducted inspections during
construction and verbally notified Pruitt and his contractor
during those inspections that the canopy extended into the
setback. Dave Calvert, the citys building official, performed
the final inspection. He told Pruitt that the canopy was in the
setback and that he would not issue a certificate of occupancy
until that problem was corrected.
Rachel James, Sewards city planner, sent Pruitt a
letter in March 2001 notifying him that his canopy was in
violation of City Code 15.10.140 pertaining to setbacks. The
letter instructed Pruitt to remove the canopy from his building
or provide an as-built survey showing that the canopy was not
located in the setback. James also informed Pruitt that the
planning and zoning commission (commission) had put the topic of
setbacks on its March 6, 2001 agenda.
Pruitt then filed a variance application requesting
authorization to allow a one to three foot doorway overhang
(canopy) into the twenty foot front yard setback. A public
hearing on the variance application was held in April 2001 and
the commission denied the application. Pruitt did not appeal
this denial.
Calvert sent Pruitt a letter in October 2001 notifying
Pruitt that it was a violation of the Uniform Building Code to
use or occupy the building without a certificate of occupancy.
Calvert again emphasized that he would not issue a certificate of
occupancy until the building complied with the citys zoning
requirements. The letter also stated: As always, you can appeal
this decision to the City Council if you so desire.
Pruitt occupied the property and opened the building
for business without a certificate of occupancy. In March 2002
Pruitt talked to Calvert about building a loading dock on the
back of his store and applied for a building permit. Calvert
told Pruitt that he would not issue any additional permits until
Pruitt had corrected the canopy setback problem and obtained a
certificate of occupancy for the building.
As James had suggested in March 2001, Pruitt obtained
an as-built survey in September 2002 showing that his canopy
extended into the setback by two feet. Pruitt then built a
covered loading dock without a permit. Calvert sent Pruitt a
letter in May 2003 stating that by building the loading dock,
Pruitt violated the building code because he did not submit plans
for review or submit to inspections during the building process.
Calvert reminded Pruitt that the canopy was still in the setback
and that Pruitt did not have a certificate of occupancy for the
building. Calvert also notified Pruitt that he could be fined up
to $1,000 per day for the violations.
In a July 2003 letter Calvert threatened legal action
and warned Pruitt that steps would be taken to fine him up to
$1,000 per day if he did not correct his violations of the
building code. Calvert instructed Pruitt to reduce his canopy
width and to obtain a building permit, a plan review, and
inspections for the loading dock. Calvert advised Pruitt that
the city would close the threatened legal action if Pruitt
complied.
During fall 2003 the commission addressed the setback
requirement in the industrial zone at multiple commission
meetings. In December 2003 the commission recommended reducing
industrial setbacks to ten feet. Nothing in the record indicates
whether the city council adopted the commissions recommendation
and changed the city code.
B. Proceedings Below
The City of Seward filed a superior court enforcement
action against Pruitt in November 2003. The citys complaint
alleged that Pruitt: (1) violated SCC 12.05.010 by using and
occupying the building without a certificate of occupancy; (2)
intentionally violated the building code by constructing the
canopy in violation of the building permit; (3) violated the
citys zoning code by constructing a canopy that extended into the
required twenty foot setback; and (4) intentionally violated the
building code by constructing a loading dock without a permit.
The city asked the court to impose a fine of $1,000 per violation
per day plus punitive damages, to require removal of the loading
dock, and to enjoin Pruitt from using the building without a
certificate of occupancy.
Pruitt counterclaimed, asserting that the citys
treatment of the canopy as a violation of SCC 15.10.140 violated
his federal and state rights to due process and equal protection.
Pruitt requested either an injunction prohibiting the city from
classifying canopies such as Pruitts as violations of SCC
15.10.140 or a decree declaring that section .140 does not
prohibit the canopy on Pruitts building or, if it does, that said
ordinance is unconstitutional and may not be enforced against
Pruitt.
The parties cross-moved for summary judgment and the
superior court heard oral argument. The city claimed that Pruitt
had waived his right to raise any objections or to make any
claims against the city because he did not exhaust his
administrative remedies under the zoning and building codes. The
city noted that Pruitt had not appealed the commissions denial of
his variance application. It also alleged that Pruitt should
have administratively appealed the citys interpretation of SCC
15.10.140 per SCC 15.10.410.2
The superior court held that resolution of the
exhaustion issue was not necessary because:
Even if no deference is given to the Building
Inspectors decision, the court reaches the
conclusion that the canopy is an
impermissible encroachment because the plain
language of SCC 15.10.140 prevents an
attachment to a structure to extend into the
setback as far as the subject canopy. See:
SCC 15.10.140. There is no question that the
canopy is an attachment to a structure.
The superior court refused to allow Pruitt to challenge the
causes of action arising out of the citys building code because
it found that Pruitt was aware of the right to appeal violations
of the building code and had failed to do so. The court also
held that Pruitts constitutional arguments were without merit.
As a sanction, the court gave Pruitt the option of either
bringing his building into compliance with the zoning and
building codes within sixty days or paying a fine of $10.00 per
violation per day for the approximately four years since the
initial violation. The court also declared the city the
prevailing party and awarded it attorneys fees.
Pruitt appeals.
III. DISCUSSION
A. Pruitt Is Not Barred from Raising a Defense to the
Enforcement Action.
The city argues that Pruitt cannot raise any objection
or defense to its enforcement action because he failed to exhaust
his administrative remedies. It claims that Pruitt was required
to appeal the citys interpretation of the zoning code under the
procedure set out in SCC 15.10.410. That section allows a
person aggrieved by any action or determination under chapter
15.10 of the city code to appeal that action or determination to
the citys planning and zoning commission within ten days. It
also specifies that any action not appealed within the prescribed
time limit is final.3
The city also argues that Pruitt should have appealed
the citys building code decisions through the administrative
appeal process set out in SCC 12.05.045. That section allows an
appeal to the city council by any person aggrieved by an
administrative officers interpretation and enforcement of the
codes of technical regulation adopted under chapter 12.05 of the
city code. Pruitts failure to appeal the citys decisions
regarding the building code, however, does not help analyze
whether Pruitt had an obligation to appeal the zoning code
ruling. Because we believe the case turns on Pruitts obligation
to appeal the zoning code ruling, the citys argument that Pruitt
failed to exhaust under SCC 12.05.045 is irrelevant. As we
explain below, the citys zoning code determination underlies all
of its building code determinations. Thus, it does not matter
whether Pruitt should have appealed the building code ruling
under SCC 12.05.045.
The city also argues that Pruitt should have appealed
the planning and zoning commissions decision denying the
variance. But as we explain below in Part III.C, it would have
been inconsistent for Pruitt, while seeking a variance, to argue
that his canopy did not in fact violate the zoning code. The
variance process gave Pruitt an opportunity to argue that the
city should make an exception to its conclusion that a canopy is
an attachment to a building under SCC 15.10.140; it did not give
him an opportunity to argue that the city was misinterpreting its
zoning code. We therefore conclude that Pruitt did not need to
appeal the variance denial to exhaust his administrative remedies
regarding the citys interpretation of the zoning code.
We review de novo the legal question whether a party
exhausted its available administrative remedies.4 Pruitt had
standing to appeal to the planning and zoning commission the
citys determination that his canopy was an attachment to a
building within the meaning of SCC 15.10.140, because that
determination prevented Pruitt from lawfully constructing the
building as he had proposed.5 The city has not alleged exactly
which determination Pruitt should have appealed or when its
interpretation of SCC 15.10.140 became final. We assume that
the city contends that Pruitt should have appealed to the
commission after he received Olsens letter informing him that his
canopy was an attachment to a building that could not extend into
the setback. There is no dispute that Pruitt did not appeal from
that letter or any later letter arguably deciding that the canopy
violated the zoning code.
Pruitt argues that compliance with the citys appellate
procedure should be excused where the appellant doesnt get a
notice indicating a final decision has been made and that a
stated appeal time has begun to run. He refers by analogy to
Appellate Rule 602(a)(2), which states that the appellate period
does not begin to run until the agency has issued a decision that
clearly states that it is a final decision and that the claimant
has thirty days to appeal. Pruitt contends that the time for
appealing the citys interpretation of SCC 15.10.140 has not yet
begun to run because the city never told him that its decision
was final, nor did it instruct him that he could appeal under
SCC 15.10.410.
We have interpreted Appellate Rule 602(a)(2) strictly,
requiring that to begin the running of the thirty-day appellate
period, the agencys decision must explicitly state that it is a
final decision.6 Although Appellate Rule 602 does not govern
internal administrative agency appeals of the sort present here,
it is analogous. The doctrine of fairness requires that an
individual must be notified that the agencys decision is final
and appealable, if the doctrine of exhaustion is to bar a claim
in a later proceeding.7
Moreover, if the recipient is not told explicitly that
a determination is final, it can be difficult to determine
whether an informal agency action is final and therefore
appealable.8 Informal agency decisions, such as those announced
in letters, interpretive rules, and policy statements, often
cannot be characterized as final actions because the decision
either does not come from someone with ultimate decision-making
authority or because the decision is hedged with language
suggesting that the position taken is tentative.9 One
commentator has noted that when an agencys determination is
expressed informally, courts will determine the finality of the
informal expression based on what is most equitable in that case.10
Courts will often allow appeals filed after the expiration of the
appellate period if the party receiving the informal advice does
not realize that such advice was meant to be determinative.11 We
agree that a party should not be barred from raising an argument
in a later proceeding for failure to exhaust its administrative
remedies if it is unclear whether the agencys informal opinion
was a final and appealable action.
As noted above, we assume that the city contends that
Pruitt should have appealed to the commission after he received
Olsens letter informing him that his canopy was an attachment to
a building that could not extend into the setback. Olsens letter
stated: This office has reviewed your plans for a new building .
. . it also appears on the building plans that the . . . canopy
over the store entrance will extend into the setback. The letter
then quoted SCC 15.10.140, stated that other attachments to a
building are specifically prohibited in the setback, and
instructed Pruitt to verify that his canopy would not extend into
the setback. (Emphasis in original.) The letter did not specify
what this office refers to but is written on City of Seward
letterhead. The letter was signed:
Sincerely,
The City of Seward
Linda-Rae Olsen
City Clerk
Olsens letter did not inform Pruitt that the citys
interpretation of the zoning code was final and appealable.
Moreover, the citys zoning code does not specify which office or
administrator bears ultimate responsibility for interpreting the
code.12 Pruitt therefore had no way to know whether the
interpretation expressed in Olsens letter was the citys final
decision or whether he could attempt to persuade a superior that
the letters interpretation of the code was erroneous.
There is also evidence in the record suggesting that
the commission was in the process of changing the zoning code
during Pruitts canopy dispute. Jamess letter to Pruitt stated:
At your request, we have put the topic of setbacks on the
Planning and Zoning Commission agenda for their regular meeting
on March 6, 2001. In an affidavit, Pruitt said that he discussed
the canopy situation with then-City Manager Scott Janke, who told
Pruitt that he hoped the setback requirement in industrial zones
would be reduced. Pruitts canopy would have complied with the
citys zoning code had the setback requirement been reduced by
only two feet. In a later affidavit, Pruitt stated that he
learned that the commission had discussed altering the setback
requirements at meetings in late 2003.13 This proposed change in
the zoning code further indicates that the citys interpretation
of the zoning code was not final. Thus, because the city did not
indicate in the Olsen letter that it was making a final decision
and because the city suggested to Pruitt that it might change the
zoning code in a way favorable to him, the city did not put
Pruitt on notice that, by not appealing the citys determination
that his canopy was a structure under SCC 15.10.140, he would
later be precluded from defending an enforcement action if the
city brought one.
Appellate Rule 602(a)(2) also requires agencies to
inform parties of their right to appeal to the superior court
within thirty days. Neither the citys letters notifying Pruitt
that his canopy violated SCC 15.10.140 nor the building permit
prohibiting the canopy advised Pruitt that he could appeal those
decisions. The city also did not inform Pruitt of the appellate
process outlined in SCC 15.10.410.
The city first referred to SCC 15.10.410 in its
summary judgment motion in the superior court enforcement action.
The only city communication to Pruitt mentioning a right to
appeal was the letter from Dave Calvert that stated: As always,
you can appeal this decision to the City Council if you so
desire. But the subject of Calverts letter was not SCC
15.10.140; instead, Calverts letter informed Pruitt that he was
in violation of the building code, not the zoning code. It is
the zoning code that contains the setback requirement.14 Thus
Pruitt was not informed of his right to appeal the citys
interpretation of the zoning code before the city commenced the
enforcement action.
The city argues that Ben Lomond, Inc. v. Municipality
of Anchorage15 forbids Pruitt from defending the enforcement
action because Pruitt did not exhaust his administrative
remedies. In that case, a municipal zoning official revoked
building permits previously issued to Ben Lomond for construction
of an apartment complex.16 The zoning official then explained to
Ben Lomond that it had the right to administratively appeal the
denial of its building plan.17 Ben Lomond chose not to appeal but
later brought a separate superior court action for deprivation of
property without due process.18 We held that Ben Lomond was
barred from bringing its claim because it had failed to exhaust
its administrative remedies when it chose not to appeal the
zoning officials decision.19
Ben Lomond is distinguishable in two significant ways.
First, the municipal zoning official, after denying the proposed
site plan, explained to Ben Lomond that the decision could be
appealed.20 Here there is no suggestion that the city ever told
Pruitt, even informally, of the applicable appellate process or
that it notified him that a final decision had been made.
Second, Ben Lomond initiated an independent action in superior
court alleging that the municipal officials zoning decision
violated its constitutional rights.21 Here, the city brought the
enforcement action; Pruitt is merely attempting to defend that
action.
Because the city did not inform Pruitt that its
decision was final, the exhaustion doctrine does not bar Pruitt
from defending against the citys enforcement action.
B. Pruitt Is Not Collaterally Estopped from Challenging
the Citys Interpretation of SCC 15.10.140.
The planning and zoning commissions denial of Pruitts
variance application ruled that canopies or marques which extend
out from a building are attachments to a building and clearly
prohibited in the setback. The city contends that because Pruitt
did not appeal the denial of his variance application, he is
foreclosed from arguing that a canopy is not an attachment under
SCC 15.10.140.
The doctrine of collateral estoppel or issue preclusion
prevents a party from raising a previously adjudicated issue in a
later proceeding.22 Four requirements must be met for collateral
estoppel to apply: (1) the party against whom issue preclusion is
sought was a party in the previous action; (2) the identical
issue was previously decided; (3) a final judgment on the merits
was issued; and (4) the judgment depended on resolution of the
issue in question.23
We review de novo the legal question whether collateral
estoppel applies.24
The commissions denial of Pruitts variance application
does not meet the requirements for collateral estoppel because
the denial was not dependent on the commissions finding that a
canopy was an attachment under SCC 15.10.140. Seward City Code
15.10.325(d) requires satisfaction of seven conditions for a
variance. The commission found that Pruitt met only two of the
conditions. At least one condition that Pruitt failed to satisfy
was unrelated to whether Pruitts canopy was an attachment under
SCC 15.10.140. The commission is required to find that a
requested variance is the minimum variance necessary to permit
the reasonable use of the land or structure.25 Because Pruitts
property was also being used for boat storage, the commission
found there was reasonable use of his property that did not
require a variance. The commission could have denied Pruitts
variance application solely because this condition was not met.26
We therefore cannot say that the commissions denial of Pruitts
variance application depended on its finding that a canopy is an
attachment to a building under SCC 15.10.140, and Pruitt is
therefore not collaterally estopped from arguing that a canopy is
not an attachment to a building.
C. It Is Necessary To Give Pruitt Opportunity To Obtain
the Commissions Interpretation of SCC 15.10.140.
We ordinarily give great weight to a zoning boards
interpretation of its own zoning code and accept its
interpretation when the board supplies a reasonable basis for it.27
This deference is based on a zoning boards expertise in
administering zoning ordinances.28 When presented with a question
of law that does not invoke agency expertise, however, a
reviewing court will substitute its judgment for that of a zoning
board.29
Pruitt argues that the citys interpretation of SCC
15.10.140 in the enforcement proceeding is not supported by the
text of the ordinance. Seward City Code 15.10.140 states in
part:
Setback. The required minimum distance from
right-of-way or lot line that establishes the
area within which only fencing, landscaping,
driveways, parking and similar uses are
permitted. Any structure including, but not
limited to decks, stairways, porches or other
attachments to a building are specifically
prohibited in the setback. Building eaves
are permitted to extend into the setback a
maximum of two feet.
. . . .
Structure. Anything constructed or erected
on the ground or attached to something having
location on the ground, including, but not
limited to, buildings, towers, and sheds.
Fences, restraining walls less than three
feet in height, signs, and similar
improvements of a minor character are
excluded.
Pruitt argues that a canopy is neither a structure nor an
attachment. The city contends that we should defer to the
interpretation the planning and zoning commission gave SCC
15.10.140 in denying Pruitt a variance.
When it denied Pruitts variance request, the commission
reasoned that canopies or marques which extend out from a
building are attachments to a building and clearly prohibited in
the setback. But Pruitt did not have the opportunity to argue to
the commission that a canopy is not an attachment to a building
before the commission entered this ruling. It would have been
inconsistent for him, in context of seeking a variance, to argue
that his canopy did not in fact violate the zoning code.30 Also,
the key issue in the enforcement case is whether Pruitts canopy
violated the zoning code; the commission did not have to decide
this issue in order to deny Pruitts variance application.31
Because the commission did not have to resolve Pruitts present
claim that the citys interpretation of the zoning code was
erroneous, and because the commissions ruling was not necessary
to decide the variance application, the commissions ruling on the
variance application is not entitled to deference in the
enforcement proceeding.32
The superior court used its independent judgment to
determine that [t]here is no question that the canopy is an
attachment to a structure. The court held that Pruitts canopy
violated the plain language of SCC 15.10.140. But whether the
canopy violated the setback ordinance is not clear. Section .140
is not so clear that we can say, as a matter of law, that a
canopy is an attachment to a building. Moreover, according to
Pruitt, the canopy only intruded into the twenty-foot setback by
about twenty-four inches. The ordinance allows building eaves to
protrude into a setback up to two feet.33 It appears possible
that the canopy is sufficiently similar in form and function to
building eaves that the canopy should be considered to be within
the eaves exception.34 According to the ordinance, the purpose of
setbacks is to ensure sufficient open area for snow accumulation,
sunlight, views, privacy, fire separation and visual relief
between structures.35 Pruitt argues that none of these purposes
is compromised by his canopy, protruding as it does only two feet
into a twenty-foot setback. He notes that [o]n any building and
certainly ones of one-story, an eave has the same impact on the
underlying land as the canopy at issue here. Pruitt also argues
that his canopy is a minor improvement, more like a sign than the
ground-based decks, stairways or porches mentioned in section
.140. In summary, he argues that, in view of the purposes of the
setback requirement and the nature of both permitted and
prohibited improvements therein, it would be irrational to
prohibit canopies that extend two feet into the setback.36
Because it is unclear whether the canopy violated the setback
ordinance, we are unable to affirm the superior courts conclusion
that it did. Given the citys reliance on the exhaustion
doctrine, and its failure to tell Pruitt it had made a final,
appealable decision interpreting section .140, the court, rather
than substitute its judgment for that of the commission, should
have given Pruitt an opportunity to obtain the commissions
interpretation.37 Whether the ordinances permit the canopy should
be decided in the first instance by the commission. In any
subsequent judicial review of the commissions decision on this
issue, a deferential standard of review should be employed and
the decision will be subject to reversal only if it is
unreasonable.38
It does not appear that the commission has had an
opportunity to interpret SCC 15.10.140 as applied to Pruitt in
light of the parties present arguments. The superior court on
remand should therefore enter an order holding the enforcement
action in abeyance until Pruitt has an opportunity to ask the
commission to interpret SCC 15.10.140. The superior court
should instruct Pruitt that he has ten days from entry of that
order in which to file with the commission an appeal under SCC
15.10.410 from the citys interpretation of section .140. If he
fails to comply with the citys appellate procedure, the abeyance
order should be vacated, and the city may argue the exhaustion
issue. Otherwise, the enforcement action should be held in
abeyance until Pruitt exhausts his administrative remedies or he
abandons the administrative appeals. This remedy will give
Pruitt an opportunity to obtain the ruling from the commission
that he could have sought with a timely appeal had he been told
that the city had reached a final, appealable decision. If there
is an administrative appeal to the superior court from a final
agency determination, the superior court assigned to that appeal
can consider whether to consolidate the two cases.
D. The Citys Four Causes of Action Against Pruitt all
Relate to the Citys Interpretation of the Zoning Code.
The citys enforcement action pleaded four separate
causes of action against Pruitt: (1) he violated the building
code by using and occupying his building without a certificate of
occupancy; (2) he violated the building code by not conforming to
the permit that required the building be constructed without the
canopy or in a manner so that the canopy did not extend into the
setback; (3) his canopy extended into the twenty- foot setback
required in the citys zoning code; and (4) he violated the
building code by constructing the loading dock without a permit.
The superior court found Pruitt liable on all four counts.
All four causes of action depend on the citys
interpretation of the zoning code. Most obviously, the claim
that Pruitts canopy violated the zoning code stems directly from
the citys interpretation that a canopy is an attachment to a
building within the meaning of SCC 15.10.140. Calverts
affidavit stated that the building permit did not authorize the
canopy because city officials noted that it would violate the
zoning code. The canopys intrusion into the setback was also
Calverts reason for denying a certificate of occupancy for the
building and a building permit for the loading dock. All four
causes of action therefore originate in the citys conclusion that
the canopy violated the zoning ordinance. Because Pruitt must be
given the opportunity to appeal the citys interpretation of
structure to the commission, the superior courts grant of summary
judgment must be vacated as to all four counts.39
IV. CONCLUSION
For the reasons discussed above, the superior courts
judgment is VACATED. We REMAND with instructions that the citys
enforcement action be held in abeyance until Pruitt has the
opportunity to appeal the citys interpretation of SCC 15.10.140.
We therefore also VACATE the citys prevailing party award of
attorneys fees.
CARPENETI, J., dissenting.
James Pruitt wanted to build a commercial building that
the City of Seward believed violated its zoning code. Through
its employees, the city told Pruitt no less than seven times in
writing1 and additional times orally2 that a proposed canopy on
the building extended illegally into the area reserved for
setbacks under the city zoning laws. Pruitt nonetheless went
ahead and built the building with the canopy.3
After the building was built, the city refused to issue
the certificate of occupancy needed under the law to occupy the
building.4 Pruitt nonetheless went ahead and occupied the
building.5
Pruitt then decided that the building needed a loading
dock. He was told by the city that the necessary building permit
would not be issued until Pruitt corrected the canopy problem and
obtained a certificate of occupancy.6 Pruitt nonetheless went
ahead and constructed the loading dock without correcting the
canopy,7 without obtaining a certificate of occupancy,8 and
without even applying for (much less obtaining) the required
permits for construction of the loading dock.9
Over three years after Pruitt initially applied for a
building permit, and after two additional warning letters,10 the
city brought an enforcement action against Pruitt.11 Superior
Court Judge Morgan Christen ruled in the citys favor, holding
that [t]o the extent Mr. Pruitt raises challenges regarding
violation of the building code, those challenges are not properly
raised in superior court because Mr. Pruitt failed to exhaust his
administrative remedies. But this court, holding that the city
effectively denied Pruitt an opportunity to appeal its zoning
decision and that the superior court should have given Pruitt the
opportunity to submit the issue of the codes meaning to the
planning and zoning commission, today vacates the superior courts
decision and remands the case to allow Pruitt to appeal.
Because the city specifically and in writing notified
Pruitt of his right to appeal,12 because Pruitt had constructive
notice of his right to appeal,13 and because Pruitt has done
nothing during the course of this case to make any claim that it
is inequitable to enforce the citys laws, I respectfully dissent.
The linchpin of the courts opinion is its holding that
the city effectively denied Pruitt an opportunity to appeal its
zoning decision. This conclusion rests on the courts careful
distinction between whether Pruitt should have appealed the citys
building code rulings or whether he should have appealed the
citys zoning code rulings, and its conclusion that the citys
zoning code determination underlies all of its building code
determinations. Focusing only on the citys zoning code decisions
(and thereby ignoring every other communication from the city
that unmistakably told Pruitt that his canopy was illegal), the
court concludes that Pruitt had no way to know that he had
received a final decision from the city on the building code.
It is difficult to give credit to this conclusion. As
the factual history above makes clear, the city had unequivocally
notified Pruitt on multiple occasions that his proposal violated
the applicable codes.14 His response after an unsuccessful
attempt to obtain a variance, from which he took no appeal was
to ignore the city and build his building and to occupy it in
violation of the codes.15 It is illogical to assume that Pruitt
might have entertained any doubt at all that the city had given
its final decision. Moreover, by his action alone he mooted for
all practical purposes any claim that he should be allowed to
pursue an appeal.
Why the citys notice of Pruitts appeal rights was
sufficient
On October 24, 2001, Dave Calvert, the manager of the
Engineering & Utilities department of the City of Seward, sent a
letter to Pruitt to summarize past actions and provide [Pruitt]
with the requirements for occupancy and use of [Pruitts]
building. The letter carefully recounted the history of the citys
attempt to obtain compliance with its codes, set out a relevant
portion of the building code, noted Pruitts unsuccessful appeal
to the Planning and Zoning Commission (the commission had denied
Pruitts request for a variance), and notified Pruitt not to
occupy the building until the noted items were corrected and a
certificate of occupancy issued. It ended with this notice: As
always, you can appeal this decision to the City Council if you
desire.
Why Pruitt had constructive notice of his right to
appeal
As noted above, this long-running dispute between the
city and Pruitt involved multiple communications between the
parties. The city frequently brought to Pruitts attention its
concern that his building would violate the zoning code16 and
that its construction violated the building code.17 Pruitt was
informed of his right to seek a variance (and did so), after the
city sent him the relevant codes. He had constructive notice of
the availability of the right to appeal set out in both the
building and zoning codes.18
Why it is entirely equitable to enforce the citys
zoning and building codes in this case
The court implicitly faults the city for expressing its
determination informally, and notes that in such cases courts
will determine the finality of the informal expression based on
what is most equitable in that case. Even accepting the courts
characterization,19 there is no inequity in the superior courts
resolution of this case. Pruitt ignored multiple notifications
that, in the view of the responsible officials, his proposed
building would violate the law. He went ahead and built it. He
was told that he should not occupy it until a correction was
made. He went ahead and occupied it. When he determined that he
needed to add a loading dock, he was told that he could not
obtain the necessary permit without correcting the original
violation. Rather than comply, he constructed the loading dock
without making the corrections, without obtaining the certificate
of occupancy, and even without obtaining a building permit for
the new construction. It is hard for me to accept the courts
unstated conclusion that Pruitt has any claim to this courts (or
Judge Christens) power to do equity where the circumstances
demand it.
For these reasons, I respectfully dissent from the
courts decision to vacate the superior courts judgment.
_______________________________
1 See SCC 15.10.220; SCC 15.10.140.
2 Seward City Code 15.10.410 states in pertinent part:
(b) Appeals standing. Any person or
persons aggrieved by an action or
determination taken under this chapter may
appeal said action or determination.
(c) Time limitation. An appeal of a
decision of the administrative official or
the Seward planning and zoning commission
must be filed within ten days of the action
or determination being appealed. . . . Any
decision not appealed within these time
limits shall become final.
3 SCC 15.10.410(c).
4 Matanuska Elec. Assn v. Chugach Elec. Assn, 99 P.3d
553, 558 (Alaska 2004).
5 See SCC 15.10.410(b).
6 See Carlson v. Renkes, 113 P.3d 638, 642 (Alaska 2005)
(holding thirty-day appellate period had not begun because letter
issuing opinion did not indicate that opinion was final or inform
of appellate procedure); Manning v. Alaska R.R. Corp., 853 P.2d
1120, 1124 (Alaska 1993) (holding agency must clearly indicate
that its opinion is final order and that aggrieved party has
thirty days to appeal under Appellate Rule 602); Skudrzyk v.
Reynolds, 856 P.2d 462, 463 (Alaska 1993) (holding that Appellate
Rule 602 did not bar late-filed administrative appeal because
letter from university president did not indicate that it was
final decision).
7 Cf. Owsichek v. State, Guide Licensing & Control Bd.,
627 P.2d 616, 622 (Alaska 1981) (holding that doctrines of
surprise and excusable neglect allowed guide to administratively
appeal boards determination after appellate period had passed
because board had not notified him that its decision was final
and appealable). Cf. Song v. Song, 972 P.2d 589, 594 (Alaska
1999) (holding that fairness required trial court to both notify
litigants that it was converting their stipulated marital
dissolution proceeding into divorce proceeding and provide
evidentiary hearing on disputed property issues).
8 2 Richard J. Pierce, Administrative Law Treatise 15.11
(4th ed. 2002).
9 2 Pierce, supra note 10, at 15.15.
10 2 Frank E. Cooper, State Administrative Law 59293
(1965).
11 2 Cooper, supra note 12, at 59293; see also Owsichek,
627 P.2d at 622.
12 See SCC 15.10.110.430.
13 Pruitts affidavit appears to interchange the years 2003
and 2004. For example, it states that the commission discussed
altering the setback requirement at meetings on October 8,
November 5, and December 2, 2004. But then it states that a
proposed amendment changing the setback requirement was presented
at the December 2, 2003 meeting. Because he executed his
affidavit on July 7, 2004, we assume that Pruitt erroneously
attributed the commissions meetings to 2004 when in fact they
occurred in 2003.
14 SCC 15.10.140 (defining setback as used in the zoning
code); SCC 15.10.220 (outlining setback requirements in each
zoning district and describing purpose of setback requirement).
15 Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d
119 (Alaska 1988).
16 Id. at 120.
17 Id. at 121.
18 Id.
19 Id. at 122.
20 Id. at 121.
21 Id.
22 Varilek v. City of Houston, 104 P.3d 849, 85253 (Alaska
2004).
23 Id. at 853.
24 Matanuska Elec. Assn v. Chugach Elec. Assn, 99 P.3d
553, 558 (Alaska 2004).
25 SCC 15.10.325(d)(6).
26 See SCC 15.10.325(d).
27 South Anchorage Concerned Coalition, Inc. v. Coffey,
862 P.2d 168, 173 n.12 (Alaska 1993).
28 Griswold v. City of Homer, 55 P.3d 64, 68 (Alaska
2002).
29 Id.
30 See Kaufman v. City of Glen Cove, 45 N.Y.S.2d 53, 62
(N.Y. App. Div. 1943) (noting that implicit in every variance
proceeding is the justified assumption that the ordinance
prohibits the proposed use).
31 Id. at 61 (holding that decision of zoning board in
rejecting variance application does not bar subsequent suit
seeking declaratory judgment that provision of ordinance does not
prohibit desired use because issues in variance cases are
fundamentally different than issues challenging interpretation of
zoning code).
32 Id. at 62 (stating that in variance proceeding any
decision as to whether the ordinance, by its terms, does or does
not prohibit the proposed use, is unnecessary and is a decision
upon an immaterial issue. It is well established that any
decision upon an immaterial issue is not binding in future
litigation.).
33 SCC 15.10.140.
34 We note that one definition of eave is a projecting
edge. Websters Third New International Dictionary 717 (1966).
35 SCC 15.10.220(c)(1).
36 We express no opinion as to whether it would be
irrational for the commission to decide that canopies are not the
same as building eaves for purposes of the setback requirement
and that it is desirable to prevent canopies from intruding into
setbacks. There is no reason for us to decide or express an
opinion about that issue before it becomes ripe.
37 See 2 Pierce, supra note 10, at 15.4 (stating that
courts should refuse to decide merits of case and send back for
exhaustion of administrative remedies when merits issue is
unclear and subject to controversy).
38 See supra notes 29 & 30 and accompanying text.
39 Pruitt also argues that the citys interpretation of SCC
15.10.140 violated his right to equal protection and substantive
due process under the Alaska Constitution. Because we vacate the
superior courts order and remand for further consideration, we
need not address these arguments.
We have been informed that Pruitt has brought the
canopy into compliance with the citys reading of the code. The
parties have not contended that this circumstance would moot this
appeal, and the citys appellate brief states that Pruitt
apparently wants to rebuild the canopy in violation of City
ordinances.
1 See (1) Letter, Linda-Rae Olsen, Planning Clerk, to
James Pruitt, August 18, 2000, advising Pruitt that canopy will
extend into the setback; (2) Fax, Linda-Rae Olsen, Planning
Clerk, to James Pruitt, August 23, 2000, informing Pruitt that
the canopy situation may not fall under [city zoning code]; (3)
Letter, Rachael James, City Planner, to James Pruitt, March 6,
2001, stating [b]ased on the building site plan, the canopy is in
violation of City Code 15.10.140; (4) Inspection Report, Dave
Calvert, City Inspector, to Jim Pruitt, May 21, 2001, commenting
Canopy is still in the setback; (5) Inspection Report, Dave
Calvert, City Inspector, to James Pruitt, June 4, 2001, noting
Canopy still in setback; (6) Letter, Dave Calvert, Manager,
Engineering & Utilities, to James Pruitt, Oct. 24, 2001, citing
removal or modification of the Canopy as primary item that needed
to be corrected to qualify for a Certificate of Occupancy; (7)
Letter, Dave Calvert, Building Official, to James Pruitt, May 6,
2003, explaining that the denial of a permit for the loading dock
was due to having the Canopy in the set back.
2 Affidavit of Dave Calvert, Building Official, stating
that on June 4, 2001 Pruitt was notified . . . verbally as well
as in writing that the canopy was in the setback and that
building officials had numerous communications with Mr. Pruitt
regarding the canopy.
3 Affidavit of Dave Calvert, Building Official, stating,
I conducted two [post-construction] inspections . . . and on both
of the inspection forms noted that the canopy was in the setback.
4 Affidavit of James T. Pruitt, noting, The City has
refused to issue a certificate of occupancy . . . and to even
consider an application for a building permit for further
improvements at this location because the canopy is an alleged
violation.
5 Letter, Dave Calvert, Building Official, to James
Pruitt, May 1, 2003, noting Pruitt occupied the building and
[has] been operating a business (Ace Hardware) since November,
2001 in violation of the code, and [has] not responded to our
requests for a correction of the violation.
6 Affidavit of Dave Calvert, Building Official, stating,
I informed Mr. Pruitt that I would be unable to issue [a
building] permit until he had corrected the canopy setback
problem and obtained a C.O. for the building.
7 Letter, Dave Calvert, Building Official, to James
Pruitt, May 6, 2003, noting that Pruitt had constructed a loading
dock and citing the canopy in the setback as the reason for
previously denying a permit for construction of the loading
dock.
8 Id., citing Pruitts lack of an occupancy permit as the
reason for denying a permit to construct the loading dock.
9 Affidavit of Dave Calvert, Building Official, stating
Pruitt built the loading dock without a permit and without
notifying me.
10 Letter, Dave Calvert, Building Official, to James
Pruitt, May 6, 2003, warning Pruitt that he was in violation of
the building code; Letter, Dave Calvert, Building Official, to
James Pruitt, July 28, 2003, noting that almost ninety days had
passed since the initial notice of violation.
11 City of Sewards Complaint, Case No. 3AN-03-13457 CI,
Nov. 20, 2003.
12 Letter, Dave Calvert, Building Official, to James
Pruitt, Oct. 24, 2001, stating, As always, you can appeal this
decision to the City Council if you so desire.
13 Section 105 of the 1997 Uniform Building Code
establishes the Board of Appeals to hear and decide appeals of
orders, decisions or determinations made by building officials
relative to the application and interpretation of this code . . .
.
14 See supra nn.1-2.
15 See supra n.3.
16 See, e.g., Letter, Linda-Rae Olsen, City Clerk, to
Pruitt on August 18, 2000, informing him that the canopy would
violate the zoning code and setting out the relevant section and
her faxed letter to Pruitt on August 23, 2000 sending information
on obtaining a variance.
17 See, e.g., Letter, Dave Calvert, Building Official to
Pruitt on May 6, 2003 explaining that a permit for the loading
dock was denied because the building was in violation of the
building code.
18 Seward City Code 15.10.410 (appeals under the zoning
code); Section 105, 1997 Uniform Building Code (citys building
code in effect at the time pertinent to this case) (appeals under
the building code).
19 It is difficult to do so. There is nothing
particularly informal about multiple written notifications from a
city to a citizen that the citizen has violated the law.
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