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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Luper v. City of Wasilla (09/11/2009) sp-6411
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
| DEBORAH A. LUPER, | ) |
| ) Supreme Court No. S- 12880 | |
| Appellant, | ) |
| ) Superior Court No. 3PA-06-1253 CI | |
| v. | ) |
| ) O P I N I O N | |
| CITY OF WASILLA, | ) |
| ) No. 6411 September 11, 2009 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Beverly Cutler, Judge.
Appearances: Kenneth P. Jacobus, Kenneth P.
Jacobus, P.C., Anchorage, for Appellant.
Thomas F. Klinkner, Birch, Horton, Bittner
and Cherot, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Deborah Luper raises dogs on property she owns in the
City of Wasilla. City ordinances applicable to her property
prohibited keeping more than three dogs without a permit. When
the city sued Luper to enforce its ordinance, she applied for a
use permit for an eighteen-dog kennel. The city denied her
permit application and she appealed. After consolidating her
permit appeal with the citys enforcement action, the superior
court denied her appeal and granted the city summary judgment in
its enforcement action. We affirm. Because substantial evidence
supported the Wasilla City Planning Commissions factual findings
and because the commission had a reasonable basis for
interpreting its ordinance as it did, it permissibly denied
Lupers permit application. Because the city disproved Lupers
affirmative defenses and was otherwise entitled to summary
judgment, the superior court did not err in granting summary
judgment to the city in the enforcement action. Finally, the
citys former three-dog Rural Residential limit was not
unconstitutional as applied to Luper.
II. FACTS AND PROCEEDINGS
Wasilla Municipal Code (WMC) 16.12.010 and 16.20.010-
.020 are zoning ordinances that require a property owner to
obtain a use permit before operating a dog kennel in a Rural
Residential zoning district in the City of Wasilla.1 An
ordinance in effect at times relevant to this case defined kennel
as a use or lot in which more than three dogs, over four months
of age, are kept.2 Wasilla Municipal Code 16.16.050(A) states
that a use permit may be granted if the applicant proves that the
proposed use meets all general criteria enumerated in WMC
16.16.050 and any applicable specific criteria enumerated in WMC
16.16.060(J).
Deborah Luper owns an approximately one-acre parcel of
Rural Residential Wasilla property, on which she operates a
shetland sheepdog (sheltie) kennel with approximately eighteen
dogs over four months of age. She describes the operation as a
hobby kennel. Luper applied for a use permit in May 2005; the
commission denied her application. On May 8, 2006, the city
filed suit in the superior court to enjoin Luper from maintaining
the kennel without a use permit. Luper applied again for a use
permit the same day. The Wasilla City Planning Commission held a
hearing on her permit application and denied her application in
June 2006. Luper appealed. On appeal the hearing officer
considered the totality of evidence and the record, including
evidence presented to the hearing officer, and determined that
the commission did not err in denying Lupers permit appeal.
Luper appealed to the superior court. In December 2006 the court
consolidated Lupers permit appeal with the citys enforcement
action.
The city moved for summary judgment in the enforcement
action. Luper opposed the motion, asserting several affirmative
defenses. In December 2006 the superior court granted the citys
motion and enjoined Luper from maintaining a kennel on her
property; the order did not directly address Lupers affirmative
defenses. The city voluntarily deferred enforcement of the
injunction pending the superior courts resolution of Lupers
permit appeal.
In September 2007 the superior court affirmed the
denial of Lupers use permit application. In the enforcement
action, the superior court granted the citys motion for summary
judgment on all remaining issues.
Luper appeals the rulings in both the enforcement
action and her permit appeal.
III. DISCUSSION
A. Standard of Review
In an administrative appeal we independently review the
merits of the agencys decision.3 Zoning board decisions are
accorded a presumption of validity.4 We apply the substantial
evidence standard of review to questions of fact.5 Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.6 In determining
whether the commission erred in denying Luper a permit, we apply
the reasonable basis standard of review,7 under which we defer to
the agencys interpretation unless it is plainly erroneous and
inconsistent with the regulation.8
We review grants of summary judgment de novo, viewing
the facts in the light most favorable to the non-prevailing party
and affirming if there are no genuine issues of material fact and
the prevailing party is entitled to judgment as a matter of law.9
A plaintiffs motion for complete summary judgment must expressly
disprove every affirmative defense of the answer.10
B. Whether the Commission Erroneously Denied Luper a Use
Permit
Luper argues that there are three reasons why the
commission erred in denying her a use permit.11
First, she argues that the public notice of the
commission hearing was [c]onstitutionally invalid, apparently on
due process grounds, because it did not contain all the
information that Luper had requested be included, such as her
intention to build an additional building or the fact that most
of her dogs were debarked. The notice indisputably met the
requirements of the applicable ordinance.12 And it satisfied due
process because it provided sufficient notice of the hearing
under the ordinance; indeed, Luper does not argue to the
contrary.13
Second, she argues that the judicial dismissal of a
prior criminal citation against her for animal annoyance
collaterally estopped the commission from making factual findings
contrary to the findings made in the criminal proceeding. We are
unconvinced. [I]ssue preclusion prevents a party from pursuing
an issue in a second action that is identical to one decided in
the first action.14 Because both the relevant burdens of proof15
and the issues adjudicated16 materially differed between the two
proceedings, the dismissal did not have collateral estoppel
effect on the proceedings before the commission.17
Third, she argues that the commissions factual findings
were unsupported by substantial evidence and were insufficient to
support denial of her permit application. The commission made
three factual findings on which it appeared to base its denial:
(1) there were twenty-four written comments from neighbors
opposing the application and only one supporting the application;
(2) there were potential groundwater contamination and drainage
issues; and (3) there were potential noise and odor issues.
Despite Lupers assertions to the contrary,18 substantial evidence
supported all three findings.19 Wasilla Municipal Code
16.16.050(A) requires an applicant to meet all of the criteria
listed in WMC 16.16.050 and .060, including due deference to
neighbors comments, appropriate drainage, and minimal off-site
impacts.20 Because the commissions factual findings demonstrate
that Luper did not meet all the criteria, the commissions
interpretation of its ordinance as allowing denial of Lupers
permit application was reasonable.21 The commission therefore did
not err in denying Lupers use permit application.
Luper argues in the alternative that the commission was
required to engage in settlement discussions with her regarding
conditions under which it would grant her a permit. But Lupers
permit application did not propose any limits or conditions. At
the commission hearing she proposed a twenty-adult-dog limit; the
commission implicitly declined to grant a permit with only that
condition. The relevant ordinances make the commission
responsible only for determining whether the submitted
application meets the criteria for granting a permit.22 The
ordinances do not place the burden on the commission to negotiate
mutually acceptable conditions with the applicant.23 Because
Luper did not propose additional conditions, she has not
preserved her contention that the commission erred in failing to
grant a more-limited conditional use permit.
C. Whether the Superior Court Erred in Granting Summary
Judgment to the City
Luper conceded in the superior court that she had
violated zoning ordinances, but argued that the city was not
entitled to complete summary judgment because it had not
disproved her affirmative defenses. Luper argues on appeal that
the city did not adequately disprove her affirmative defenses,24
and that the superior court therefore erred in granting summary
judgment to the city in the enforcement action. She does not
argue that there is a genuine dispute of material fact or that
the undisputed facts are insufficient to establish a zoning
violation as a matter of law.
She first asserts that the city should be estopped from
enforcing its use permit requirement because when she purchased
the property, she reasonably relied on the city clerks statement
that she only needed a kennel license to operate a hobby kennel.
We consider four factors when estoppel is asserted against a
municipality: (1) the municipalitys assertion of a position by
conduct or word; (2) reasonable reliance; (3) resulting
prejudice; and (4) the interests of justice.25 Lupers argument is
unpersuasive because it is not reasonable to rely on a government
employees statement that is at variance with the law,26 and
because the interests of justice would not be served by binding
the city on a relatively offhand verbal comment that is allegedly
the basis for deciding whether to purchase a home.
Second, Luper argues that the city selectively enforced
its ordinances against only her. Because Luper failed to meet
her burden of demonstrating that the city intended to
discriminate against her based on an arbitrary or unjustifiable
classification,27 the superior court correctly granted summary
judgment to the city on this issue. Contrary to Lupers
assertions, none of the evidence that Luper presented on summary
judgment demonstrates differential treatment or intent to
discriminate: (1) the citys admission that it had no record of
issuing a kennel license to any person other than [Luper] in the
previous three years does not demonstrate differential treatment;
(2) none of the proceedings Luper identifies involving three
previous permit applications demonstrates differential treatment;28
and (3) even assuming Lupers assertions that the city did not
enforce the relevant ordinances against her neighbors are true,
we have held that mere failure to enforce an ordinance against
others similarly situated does not itself prove selective
enforcement in the absence of evidence of discriminatory intent.29
Finally, Luper contends that the mayor of Wasilla
improperly interfered with the permit process by terminating time
extensions, interfering with Lupers employment, and tr[ying] to
insert herself into the appeal proceeding. Luper presented no
evidence linking this alleged conduct with the commissions
denial. Luper therefore failed to demonstrate that the mayors
alleged actions interfered with the commissions consideration of
her application.
Because the city has demonstrated that the three
affirmative defenses Luper discusses on appeal are without merit,
and there is no genuine factual dispute material to the
enforcement action, we conclude that the superior court did not
err in granting summary judgment for the city.
D. Whether the Three-Dog Limit Was Unconstitutional
Luper argues that Wasillas former three-dog limit was
unconstitutional because it infringed on her property rights in
both her land and her dogs.30 When a zoning ordinance infringes
on property rights we apply the minimum level of scrutiny,31 under
which the provision must bear a fair and substantial relationship
to a legitimate government purpose.32 Luper correctly concedes
that the city has legitimate interests in controlling dog noise,
dog odor and pollution, dog-caused disease, and loose dogs. The
three-dog limit bore a fair and substantial relationship to those
purposes. The relationship was substantial because having fewer
dogs effectively and directly limited noise, odor, pollution,
health risks, and the potential for escaped dogs. The
relationship was fair because it was reasonable to think that
more dogs may cause more nuisances, and the ordinance simply
imposed an additional requirement (obtaining a use permit) on
residents who wished to have more than three dogs, shifting the
burden to the dog owner to prove that the additional dogs would
not annoy or threaten the health or safety of the community. The
city did not completely prohibit owning more than three dogs.
That the ordinances three-dog limit can be characterized as
numerically arbitrary does not mean that the ordinance itself was
constitutionally arbitrary.33 We therefore hold that the former
three-dog limit was not unconstitutional.
IV. CONCLUSION
We AFFIRM the superior courts order affirming denial of
Lupers use permit application. We also AFFIRM the superior
courts final judgment, entered upon summary judgment for the
city, in the enforcement action.
_______________________________
1 WMC 16.12.010 states that Section 16.20.020 includes a
use chart describing the type of permit needed before initiating
a use of land. There are three types of permit: (1)
administrative approval (AA); (2) use permit (UP); and (3)
conditional use (CU). WMC 16.20.010 abbreviates Rural
Residential as RR. The WMC 16.20.020 chart contains the
abbreviation UP in the kennel/cattery row under the RR column.
Luper appears to concede that the municipal code required her to
obtain a use permit to operate her kennel.
2 Former WMC 16.04.070, amended by City of Wasilla
Ordinance Serial No. 08-41 (Sept. 8, 2008). The current WMC
16.04.070 imposes a four-dog limit, defining kennel as any
premises used for breeding, buying, selling, keeping or boarding
five or more dogs over the age of six months, whether for profit
or not.
3 Griswold v. City of Homer, 55 P.3d 64, 68 (Alaska
2002); Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254
(Alaska 2000).
4 Griswold, 55 P.3d at 67; Balough, 995 P.2d at 254.
5 Griswold, 55 P.3d at 67-68; Balough, 995 P.2d at 254.
6 Balough, 995 P.2d at 254.
7 See Griswold, 55 P.3d at 67; Balough, 995 P.2d at 254.
8 Pasternak v. State, Commercial Fisheries Entry Commn,
166 P.3d 904, 907 (Alaska 2007) (quoting Simpson v. State,
Commercial Fisheries Entry Commn, 101 P.3d 605, 609 (Alaska
2004)).
9 Cragle v. Gray, 206 P.3d 446, 449 (Alaska 2009) (citing
Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005)); Larson
v. Cooper, 90 P.3d 125, 128 n.3 (Alaska 2004); Balough, 995 P.2d
at 254.
10 Jackson v. Kenai Peninsula Borough for Use & Benefit of
Kenai, 733 P.2d 1038, 1040 (Alaska 1987) (quoting Braund, Inc. v.
White, 486 P.2d 50, 54-55 n.6 (Alaska 1971)).
11 Even though the hearing officer apparently considered
additional evidence when Luper appealed the commissions denial,
both parties on appeal assume we are only reviewing the
commissions decision.
12 WMC 16.16.040(A)(2)(b) states that notice of a hearing
must be published and must set out the time, date and place of
the hearing, the name of the applicant, the address or general
location of the property and subject or nature of the action.
13 See, e.g., Groom v. State, Dept of Transp., 169 P.3d
626, 635 (Alaska 2007) (We have previously held that the crux of
due process is the opportunity to be heard and the right to
adequately represent ones interests. While the actual content of
the notice is not dispositive in administrative proceedings, the
parties must have adequate notice so that they can prepare their
cases. (citing Matanuska Maid, Inc. v. State, 620 P.2d 182, 192
(Alaska 1980); North State Tel. Co. v. Alaska Pub. Util. Commn,
522 P.2d 711, 714 (Alaska 1974))); City of Homer v. Campbell, 719
P.2d 683, 686-87 (Alaska 1986) (An elementary and fundamental
requirement of procedural due process is notice reasonably
calculated, under all the circumstances, to inform interested
parties of action affecting their property rights. (citing
Mullane v. Cent. Hanover Bank & Trust, 339 U.S. 306, 314 (1950);
Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974))).
14 Beegan v. State, Dept of Transp. & Pub. Facilities, 195
P.3d 134, 138 (Alaska 2008) (citing Johnson v. Alaska State Dept
of Fish & Game, 836 P.2d 896, 906 (Alaska 1991)) (internal
brackets and quotation marks excluded).
15 See Avery v. State, 616 P.2d 872, 873-74 (Alaska 1980)
(holding no issue preclusion because burdens of proof materially
differed); see also Murray v. Feight, 741 P.2d 1148, 1155 (Alaska
1987).
16 Lack of annoyance was the dispositive issue in the
criminal case, WMC 07.04.030, but was not dispositive for the use
permit. WMC 16.16.050, .060(J).
17 Nor, contrary to Lupers contention on appeal, was the
commission required to give great deference to these findings in
the criminal case; the commissions decision was supported by
substantial evidence.
18 Luper asserts that the findings are not supported by
substantial evidence because most of her dogs are debarked, she
takes the dogs outside in groups to minimize noise, she is
fastidious about dog cleanliness, one horse (for which a use
permit is not required) produces more waste than all of her dogs,
her lot is the lowest one in the area, and she does not have a
loose-dog problem.
19 The record contains comments from at least twenty-seven
neighbors opposing the application on grounds of noise, odor, and
groundwater contamination, among other things. Although there
was some evidence that Lupers lot was the lowest in the
subdivision, four neighbors expressed concerns about groundwater
contamination, and the Alaska Department of Environmental
Conservation commented that runoff containing animal waste may
pose health risk to adjoining property owners. Despite what
appear to be significant efforts to control both noise and odor,
the city received two noise complaints about Lupers dogs
unrelated to the permit application.
20 See WMC 16.16.050(A)(1), (11), (14).
21 See Pasternak v. State, Commercial Fisheries Entry
Commn, 166 P.3d 904, 907 (Alaska 2007) (When reviewing an agencys
interpretation of its own regulation, we apply the reasonable
basis standard.).
22 See WMC 16.16.050, .060(J).
23 WMC 16.16.050, .060(J).
24 See Jackson v. Kenai Peninsula Borough for Use &
Benefit of Kenai, 733 P.2d 1038, 1040 (Alaska 1987) (A plaintiffs
motion for summary judgment must prove not only every element of
his cause of action, it must also expressly disprove every
affirmative defense of the answer. (quoting Braund, Inc. v.
White, 486 P.2d 50, 54-55 n.6 (Alaska 1971))).
25 Id. at 1040-41 (citing Municipality of Anchorage v.
Schneider, 685 P.2d 94, 97 (Alaska 1984)).
26 Whaley v. State, 438 P.2d 718, 720 (Alaska 1968)
(holding that any representation by state official contradicting
explicit provision of personnel rule would be unauthorized and of
no effect, and therefore state was not estopped from denying
effect to representation); see also Jackson, 733 P.2d at 1041;
State v. Alaska Land Title Assn, 667 P.2d 714, 726 (Alaska 1983).
27 Rollins v. State, Dept of Revenue, Alcoholic Beverage
Control Bd., 991 P.2d 202, 210 (Alaska 1999) (citing Gates v.
City of Tenakee Springs, 822 P.2d 455, 461 (Alaska 1991)).
28 Two of the applicants were not similarly situated to
Luper: one was granted a permit by a different entity (the
borough instead of the city) for only four dogs, and the second
was granted a permit in a commercially zoned district. The third
applicant was situated similarly to Luper but was denied a permit
in the same district as Luper.
29 Rollins, 991 P.2d at 210.
30 Luper does not clarify whether she is alleging a denial
of substantive due process or of equal protection. An ordinance
violates substantive due process if it does not bear a reasonable
relationship to a legitimate purpose. Premera Blue Cross v.
State, Dept of Commerce, Cmty. & Econ. Dev., Div. of Ins., 171
P.3d 1110, 1124 (Alaska 2007). Because an ordinance that bears a
fair and substantial relationship to a legitimate purpose
necessarily also bears a reasonable relationship to a legitimate
purpose, id. at 1124-25, if we conclude that the ordinance
satisfied equal protection we do not need to separately address
whether the relationship satisfied substantive due process.
31 Barber v. Municipality of Anchorage, 776 P.2d 1035,
1039-40 (Alaska 1989).
32 Premera Blue Cross, 171 P.3d at 1122; Pub. Employees
Ret. Sys. v. Gallant, 153 P.3d 346, 349-50 (Alaska 2007).
Alaskas standard is more protective than the federal standard
because it requires that the relationship be fair and substantial
rather than merely rational. Alaska Civil Liberties Union v.
State, 122 P.3d 781, 787 (Alaska 2005); Commercial Fisheries
Entry Commn v. Apokedak, 606 P.2d 1255, 1261-62 (Alaska 1980).
An ordinance that satisfies the state standard therefore
necessarily also satisfies the federal standard.
33 See Holt v. City of Sauk Rapids, 559 N.W.2d 444, 446
(Minn. App. 1997) ([N]umbers chosen as legal limitations are
often arbitrary: e.g., speed limits, building ordinances,
statutes of limitation. The necessity of selecting some number
arbitrarily does not render an ordinance itself arbitrary.).
In any event, Luper does not claim that the ordinance
arbitrarily prevented her from owning one, two, or even three
dogs beyond the former three-dog limit; she contends that she
should be allowed to keep at least eighteen dogs over the age of
four months. On appeal she argues that there was no reason she
should not be allowed to keep at least twenty dogs.
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