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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. South Anchorage Concerned Coalition, Inc. v. Municipality of Anchorage Board of Adjustments (12/14/2007) sp-6210
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
| SOUTH ANCHORAGE | ) |
| CONCERNED COALITION, INC., | ) Supreme Court No. S- 12121 |
| ) | |
| Appellant, | ) Superior Court No. 3AN-04-9789 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| MUNICIPALITY OF ANCHORAGE | ) No. 6210 - December 14, 2007 |
| BOARD OF ADJUSTMENT, | ) |
| DAVID D. HULTQUIST and | ) |
| LESA L. HULTQUIST, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Philip R.
Volland, Judge.
Appearances: Lawrence V. Albert, Anchorage,
for Appellant. Joshua M. Freeman, Assistant
Municipal Attorney, and James N. Reeves,
Municipal Attorney, for Appellee Municipality
of Anchorage. Donald W. McClintock and Dani
Crosby, Ashburn & Mason, P.C., Anchorage, for
Appellees Hultquist.
Before: Fabe, Chief Justice, Eastaugh,
Bryner, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
PER CURIAM.
I. INTRODUCTION
This appeal arises from opposition to a proposed
residential development on a former gravel pit in south
Anchorage. Approval of the development by the municipal planning
authority was contingent on submission of evidence indicating
that local groundwater supplies would not be contaminated by the
development. Evidence to that effect was submitted by the
developers and the plats were approved. The South Anchorage
Concerned Coalition contests the integrity of that evidence
generally and whether the agency was justified in relying on it
to satisfy requirements that it pursue further investigation
before the plat could be approved. Specifically at issue in this
appeal are (1) whether the superior court abused its discretion
in refusing to apply the de novo standard of review to the
agencys approval of a development plat; (2) whether the court
erred in refusing to allow the Coalition to supplement the record
on appeal; and (3) whether the agency abused its discretion in
approving the plat in reliance on the data and reports submitted
by the developers.
II. FACTS AND PROCEEDINGS
In December 2001 David and Lesa Hultquist submitted a
plat application to the Municipality of Anchorage Platting Board
to develop a 233-acre residential subdivision in an area known as
the Sand Lake Gravel Pits. Gravel had been excavated at the site
since the 1950s, significantly altering its natural topography:
the terrain is variable and uneven, and a majority of the site is
fifty feet lower than the surrounding landscape. Additionally,
excavation in one area exceeded the depth of the groundwater
table, exposing an aquifer pond. Local residents served by wells
(which tap into aquifers) became concerned that development of
the area would contaminate the underlying groundwater supply.
The South Anchorage Concerned Coalition (the Coalition)
represented those residents opposed to the development throughout
the platting process.
In support of their plat application, the Hultquists
submitted two reports prepared by their environmental consultant,
Terrasat, Inc., which concluded that the proposed development
would not significantly impact the areas groundwater supplies. A
public hearing on the application was scheduled for March 2002.
In advance of that hearing, municipal staff indicated that the
report was inadequate in several respects; they advised the
Hultquists to conduct further investigation to better define the
characteristics of the aquifers underlying the development area
prior to the hearing.
The Platting Board approved the plat at the March
hearing, subject to numerous conditions, many of which were
specific to better understanding and protecting the sites
groundwater resources. Among these, Condition No. 31 required
that the Hultquists submit[] the Hydrology Report to Alaska
Department of Environmental Conservation [DEC] for review and
that the report, along with Municipal Assembly and DEC review
comments, be submitted to the Platting Board for public hearing
review in May 2002. But the DEC had earlier declined an
invitation to assume authority over all water issues associated
with the development; it was willing to provide only informal
support. To review Terrasats report, the Municipality instead
retained Shannon & Wilson, an environmental consulting firm.
Shannon & Wilson identified several areas of uncertainty in the
ground water resource evaluation and opined that Terrasats
conclusions [were] premature.
At the second hearing in May 2002, the Platting Board
received numerous comments concerning the Hydrology Report and
whether the developers had met the conditions of the earlier
approval. Municipal staff testified that a series of meetings
had occurred with staff from [DEC], [the] Department of Health
and Human Services (DHHS), OSWWS [Municipal On-Site Water and
Wastewater Services], Shannon & Wilson and Terrasat, Inc. to
review the preliminary hydrology report and subsequent revisions
to the report. Experts retained by the Coalition asserted that
the report still did not adequately address the nature of risks
posed by the development. Neighbors likewise expressed ongoing
concerns that the data . . . was insufficient to conclude that
there would be no adverse impact on the water quality and that
water quality issues were not being adequately addressed by the
Municipality.
In its statement of findings and conclusions, submitted
on June 5, 2002, the Platting Board found that through the
studies done by the Municipality and peer review, as well as
rebuttal [of critique] of the Terrasat report, many concerns were
answered. Based on these and other findings indicating that the
underlying aquifer was confined and protected from the effects of
the proposed development, the Platting Board accepted the
Hydrology Report and concluded that the requirement of Condition
No. 31 has been met . . . based on the conclusion of all the
involved professionals from ADEC, OSWWS, DHHS, [and] Shannon &
Wilson that the development plan . . . will provide adequate
protection of the ground water quality in this area. In
response to the Coalitions complaint that Condition No. 31
specifically required DEC review, the Platting Board first noted
that this condition was inserted in deference to the public
opinion and the best effort was made to address that request.
The Platting Board then indicated that it had the authority and
ability to proceed without DEC review: the Board is charged with
weighing the testimony and information presented to it. Staff is
charged with completely and accurately reviewing information
provided in the packet. They have been hired for their positions
based on rigorous qualification bases and interviews and . . .
are qualified.
The Coalition appealed the Platting Boards decision to
the Board of Adjustment. In a decision issued on May 13, 2003,
the Board of Adjustment largely affirmed approval of the plat but
remanded the matter to the Platting Board to require, among other
things, that the developer (1) submit additional testing of
potential contaminants and mapping of aquifers and water flow;
(2) address the issue of recharging existing wells and septic
systems; and (3) hold a public hearing on the hydrology and water
quality issues.
By then, the DEC had taken an active interest in the
matter; it had reviewed the preliminary plat application and made
several recommendations to further protect and monitor ground
water quality at the site. It issued a report on May 12, 2003
(the day before the Board of Adjustment issued its decision) in
which it concurred that the exposed aquifer was not contiguous
with the deeper confined aquifers that supply the areas wells and
thus that the impact of development on water quality would be
minimal. The DEC report had not been subjected to third-party
review, and it is not clear that the Board of Adjustment was
aware of this report when it remanded the matter to the Platting
Board for additional information.
In response to the Board of Adjustments requirement of
additional testing, mapping, and consideration of the water
quality issue, Terrasat on behalf of the Hultquists wrote a
letter recounting its earlier findings and reiterating that the
development would not significantly impact ground water quality.
Several months later, Terrasat wrote a second letter presenting
additional information in support of these conclusions. It noted
several times in these letters that the DEC report was in accord
with its own findings and conclusions.
The Platting Board held a hearing in September 2003 to
review and deliberate the matters on remand. It issued a written
decision on October 1, 2003. Relying in large part on the DEC
report, the Platting Board found that the remand to address the
hydrology of the proposed development had been met. The
Coalition criticized the DEC report, asserting, in sum, that it
failed to properly characterize subsurface conditions resulting
in an unsubstantiated conclusion that the local water supply
would not be impacted. In response to the Coalitions criticisms
of the DEC report and concerns that it had not been subjected to
third-party review, the Municipal Planning Department had earlier
recommended that the hearing be postponed to allow for third-
party review of the report, but this request was denied.
The Coalition again appealed the Platting Boards
decision to the Board of Adjustment alleging, among other things,
that the Board erred by not requiring the satisfaction of the
three conditions in the Assembly remand with regard to protection
of the area drinking water. The Coalition also objected to the
Boards reliance on the unreviewed DEC report as satisfaction of
the terms of the remand.
In its decision of July 8, 2004, the Board of
Adjustment affirmed the Platting Boards decision, concluding that
the evidentiary record was expanded by the inclusion of
information, analyses and documents which provided substantial
evidence to support the Platting Boards decision. At issue, it
seemed, was simply whether the developers had submitted
additional information, as previously directed. The Board of
Adjustment found that it had. Like the Platting Board, the Board
of Adjustment relied heavily on the DEC report (which it
characterized as an independent third party review and report) as
[e]vidence in the record showing additional testing of potential
contaminants.
During pendency of that appeal, the Coalition moved to
reopen proceedings before the Platting Board to allow for
consideration of forthcoming evidence: the Alaska legislature had
recently committed funds to the University of Alaska Anchorage
(UAA) to perform an independent review of the DEC report and all
other existing records in order to fairly evaluate the potential
impacts of the development. The Hultquists opposed the motion,
noting that the Board has already made clear it is comfortable
with the record before it. The motion was denied. The UAA
report was ultimately produced on October 6, 2004, a year after
the Platting Boards approval of the plat and three months after
the Board of Adjustments decision on appeal.
The Coalition filed an appeal in superior court and
moved for a trial de novo. It asserted that the court should
make its own findings based on the evidentiary record because the
Platting Board lacks expertise in [the] subject matter of
groundwater hydrology and evaluation of contamination to the
groundwater drinking resource. It also sought to supplement the
record on appeal with the UAA report and correspondence related
to the requisition of that report, as well as the resumes of
members of the Platting Board. The superior court denied both
motions at oral argument and later explained the reasoning for
its decision in a written order.
As to whether the issues on remand had been adequately
addressed, the court affirmed the Platting Boards decision
approving the plat. More specifically, the court held that the
conditions of remand requiring additional evidence of drinking
water protection were satisfied because there was substantial
evidence that additional testing of potential contaminants [had
been] conducted by ADEC and that an additional monitoring well
had been installed. Similarly, the court found that there was
substantial evidence to support the Platting Boards finding that
additional mapping of the aquifers and of water flow had been
performed. Again, the court cited the DEC report issued on
May 13, 2003, which presumably constituted new information. As
for the requirement that the developer address the recharge of
wells and septic systems, the court noted that Terrasat had
provided additional discussion on the issue in its post-remand
letters.
The Coalition appeals.
III. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion.
1. De novo review
The Coalition claims that the superior court erred in
denying de novo review, arguing that the Platting Board lacks the
substantive expertise required to competently address the
technical issues presented to it. Noting that none of the
Platting Board members have degrees or backgrounds relevant to
hydrology, the Coalition contends that the court should not defer
to their findings of fact; rather, the Coalition would have the
court review the technical information for itself and draw its
own conclusions.
This would be a departure from the norm. A court
normally reviews an agencys decision on the record.1 While
Appellate Rule 609 affords the superior court discretion to
conduct a trial de novo,2 it is rarely warranted.3 This court
has upheld or directed application of de novo review where
certain issues are not within the expertise of the reviewing
body; where the agency record is inadequate; where the agencys
procedures are inadequate or do not otherwise afford due process;
or where the agency was biased or excluded important evidence in
its decision-making process.4 We review the superior courts
decision not to grant de novo review for abuse of discretion.5
Under this deferential standard, we uphold the superior courts
decision unless we are left with a definite and firm conviction
after reviewing the whole record that the trial court erred in
its ruling.6
The premise for the Coalitions de novo argument here is
that the Platting Board lacks expertise to decide whether the
development will have an adverse impact on the areas groundwater
supply. We agree with the superior court that this argument is
without merit. The Coalition has misperceived the Platting
Boards duty; it is not to determine the actual impact of the
development on the areas groundwater. The Platting Boards duty
is, more broadly, to determine whether the plat application
conforms to the standards set forth in the municipal code.7 More
specifically, the Boards task on remand was to determine whether
the developers had met the burden of providing additional
information and ensuring that groundwater quality concerns were
being addressed. For these endeavors, the Board members do not
need degrees in hydrology or any other surrogate expertise.
Rather, the Board must be collectively qualified to weigh[] the
testimony and information presented to it and to completely and
accurately review[] information provided. In this case, several
reports were submitted and critiqued, and numerous experts in the
field of hydrology offered written and verbal comments; the Board
is entitled to rely on these submissions and then to apply its
own judgment in determining whether the codes requirements have
been met. We acknowledge that the data and conclusions
ultimately relied on by the Board are controverted: experts
disagree. But this does not mean that the Board is incompetent
to ultimately determine whether based on the information
provided the plat application merits approval.
The Coalition relies heavily on our decision in
Matanuska-Susitna Borough v. Lum to argue that the Board does not
meet policy-driven criteria for expertise.8 Lum is inapposite in
this case because the appellant there had a statutory right to
trial de novo.9 The public policy issues discussed in that case
and upon which the Coalition relies here were set forth only to
justify the legislatures departure from the norm of discretionary
trial de novo, not to establish a new standard for de novo review
in the absence of such a statute.10
The Coalition is correct in asserting that the superior
court has discretion to authorize de novo review, and also that
de novo review may be granted when the administrative agency
lacks relevant expertise; it follows that the court also has
discretion to deny de novo review. It acted within its
discretion in doing so here.
2. Supplementation of the record
The Coalition also claims that the superior court
abused its discretion in not allowing it to supplement the record
with the UAA report. The Coalition characterizes the report as a
comprehensive, independent evaluation of existing reports and
data that presents new evidence that the conclusions of the
earlier reports were not justified. The Hultquists contend that
the court acted well within its discretion in denying submission
of a report that was produced more than a year after the
conclusion of the administrative proceedings.11
We have interpreted Appellate Rule 609(b)(1) to allow
the superior court to consider additional evidence in the event
that it decides to conduct a trial de novo in whole or in part.12
And it may well be that de novo review is compelled in the first
place by the need to consider new material evidence where
evidence was improperly excluded during the administrative
proceedings or the agency lacked expertise so that the appellant
was denied due process.13
Having already found that the superior court acted
within its discretion in denying de novo review, whether it erred
in not permitting the Coalition to supplement the record with the
UAA report is all but moot. Absent procedural irregularities at
the administrative level, or some indicia that the Coalitions
right to due process in presenting its case was compromised, we
can only justify requiring supplementation of the record on a
showing that the proffered evidence would impact the outcome of
the case.14 We recognize that the UAA report undermines the
conclusions that the Platting Board relied upon in approving the
plat and that it disagrees with many of the Boards findings. But
the Coalition had every opportunity to present evidence refuting
the developers assertions throughout the administrative
proceedings, and indeed it did so: its own experts provided
cogent written comments and oral testimony controverting the data
and conclusions submitted by the Hultquists. The UAA report is
clearly relevant, and it may well have influenced the Boards
decision. But it does not purport to turn the outcome of this
case on its head, and as a procedural matter, the Coalition has
identified no compelling legal basis for requiring its
consideration by the superior court.15
B. Substantial Evidence Supports the Platting Boards
Decision.
The Coalition argues that substantial evidence does not
exist to support the Platting Boards determination that the
conditions on remand from the Board of Adjustment were met. More
specifically, the Coalition criticizes the Platting Boards
reliance on the DEC report as evidence of compliance with the
requirement that additional testing be undertaken and new
information provided. As discussed above, it is not our place to
weigh the quality of the evidence relied upon by the Platting
Board; at issue for the purposes of our review is simply whether
substantial evidence exists. The superior court found that it
did; having independently reviewed the record, we agree with its
conclusion.
1. Standard of review
When the superior court acts as an intermediate court
of appeal in an administrative matter, we independently review
the merits of the agencys decision.16 We review an agencys
factual findings under the substantial evidence standard,
reversing the decision only if we cannot conscientiously find
that the evidence supporting [the agencys decision] is
substantial.17 Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.18
The Coalition urges us to incorporate the Daubert test
into our standard of review and to independently evaluate the
admissibility or reliability of the expert testimony relied on by
the agency in its decision.19 Daubert speaks to the bare
admissibility of expert testimony; it has no bearing on the
standard of review here. The admissibility of expert evidence is
more appropriately challenged when the evidence is presented.
Having failed to do so in proceedings below, the Coalition is not
at liberty to ask us to evaluate the reliability of the evidence
here.
2. Conditions on remand
In its remand to the Platting Board, the Board of
Adjustment directed the Board to require the submission . . . of
additional testing of potential contaminants and mapping of
aquifers and water flow and to require the developer to address
the issue of recharging existing wells. These mandates were at
once objective and therefore readily measurable and decidedly
vague. At bottom, compliance was essentially predicated on the
submission of additional information; no standard of scientific
certainty was required, nor was there a requirement that
conflicting evidence and assessments be reconciled, or even that
issues be adequately addressed rather than just addressed.
Admittedly, the evidence submitted in fulfillment of
these requirements was controverted and sparse; the Hultquists
rely heavily on the DEC report as the additional information, as
well as the boring of one new monitoring well. These new
submissions were not subjected to third-party review and arguably
added little to the collective understanding of the areas
geohydrology and the risks presented by development. But the
Platting Board and the Board of Adjustment could nonetheless
conclude that the terms of the remand were technically satisfied:
substantial evidence exists to support a finding that additional
information was presented and that issues were addressed.
Notably, the Board of Adjustment, which itself crafted the
directives on remand, was satisfied by the Hultquists response to
that mandate. Here, substantial evidence both supporting and
opposing the Hultquists conclusions exists and was considered by
the Platting Board in its decision-making process. In light of
the deferential standard we apply on appeal, we must affirm the
Platting Boards finding.
3. Approval of the plat
The Coalition also argues that the Platting Boards
decision to approve the plat offends the municipal code.
Specifically, the Coalition asserts that the plat fails to
promote the public, health, safety and welfare and to avoid land
use incompatibilities with surrounding neighborhoods.20
Whether the plat application conforms to the standards
of the municipal code and merits approval is a question of law
that implicate[s] specialized agency expertise or the
determination of fundamental policies within the scope of the
agencys statutory function.21 We therefore review the Platting
Boards decision using the rational basis standard of review.22
This standard is highly deferential and requires only that we
find that the agencys decision was reasonable, regardless of
whether we actually agree with it.23
The cited mandates of the municipal code are fairly
subjective. Of note, the Coalition misstates the code as
requiring that a plat avoid land use incompatibilities; in
reality, it only requires that such effects be mitigated.24
Broadly speaking, we interpret the code not to require that the
Platting Board ensure that there will be no adverse impacts, but
rather to balance these against the projects benefits and to
determine whether, in the aggregate, the public welfare will be
promoted. To this end, three public hearings were held in this
case, numerous technical reports were submitted and reviewed, and
input from state and local agencies and concerned citizens was
considered. Procedurally, the Platting Board appears to have
discharged its duty according to the terms of the municipal code,
and we agree with the superior courts determination that, in
substance, the Platting Board had a rational basis for approving
the plat.
IV. CONCLUSION
In accord with our analysis above, we AFFIRM the
superior courts denial of the Coalitions motion to conduct de
novo review of the record and to supplement the record. We
further hold that substantial evidence supports the decision of
the Platting Board to approve the plat, and therefore AFFIRM the
Boards decision.
_______________________________
1 See City of Fairbanks Mun. Utils. Sys. v. Lees, 705
P.2d 457, 460 (Alaska 1985).
2 Alaska R. App. P. 609(b)(1).
3 See Sw. Marine, Inc. v. State, Dept of Transp. & Pub.
Facilities, Div. of Alaska Marine Highway Sys., 941 P.2d 166, 179
(Alaska 1997).
4 See Treacy v. Municipality of Anchorage, 91 P.3d 252,
270 (Alaska 2004) (citing Eufemio v. Kodiak Island Hosp., 837
P.2d 95, 102 (Alaska 1992); Lees, 705 P.2d at 460; State v.
Lundgren Pac. Constr. Co., 603 P.2d 889, 896 (Alaska 1979)).
5 Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska
1998).
6 Id.
7 Anchorage Municipal Code (AMC) 21.75.010(A)(2) (1996),
for one, states that the Platting Board can only approve a plat
if it finds that the plat promotes the public, health, safety and
welfare. See also AMC 21.10.020 (describing the powers and
duties of the Platting Board).
8 Matanuska-Susitna Borough v. Lum, 538 P.2d 994, 994
(Alaska 1975).
9 Id. at 996.
10 Id. at 1000-01.
11 The Hultquists also argue that the UAA report has not
been subjected to the rigors of the administrative process or
third-party review. The Hultquists state that to remedy this by
remanding the case to the Platting Board, as the Coalition
suggests, would be impossible, not to mention inordinately
expensive. But the Hultquists have themselves relied heavily on
evidence (namely the DEC report) that was not subjected to such
rigors or review. Moreover, we note that the UAA report is
itself a review; it does not purport to present new data so much
as to comment on existing data and the conclusions that have been
drawn from that data.
12 Sw. Marine, Inc., 941 P.2d at 179; Lundgren Pac.
Constr. Co., 603 P.2d at 896 n.18.
13 Eufemio, 837 P.2d at 102; Lundgren Pac. Constr. Co.,
603 P.2d at 895-96.
14 See Sw. Marine, Inc., 941 P.2d at 179-80.
15 The Coalitions reliance on Native Village of Eklutna v.
Board of Adjustment, 995 P.2d 641, 645-46 (Alaska 2000), makes
little sense; there, having already remanded the case to the
agency for lack of substantial evidence supporting its findings,
we simply directed the agency to exercise . . . its discretion in
deciding whether to admit a report that had not previously been
considered. Id. at 645-46.
16 Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002).
17 Robinson v. Municipality of Anchorage, 69 P.3d 489, 493
(Alaska 2003) (citation omitted); see also Williams, 53 P.3d at
139 (citation omitted).
18 Leigh v. Seekins Ford, 136 P.3d 214, 216 (Alaska 2006)
(citation omitted).
19 See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993); see also State v. Coon, 974 P.2d 386, 395 (Alaska 1999)
(adopting the Daubert standard).
20 See AMC 21.75.010(A)(2)-(3).
21 Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903 (Alaska 1987).
22 Id.
23 Id.
24 AMC 21.75.010(A)(3).
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