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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lundgren v. City of Wasilla (11/6/2009) sp-6429
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
| GARY LUNDGREN, | ) |
| ) Supreme Court No. S- 13108 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-02- 13590 CI | |
| v. | ) |
| ) O P I N I O N | |
| ) | |
| CITY OF WASILLA, an Alaskan | ) No. 6429 - November 6, 2009 |
| municipal corporation, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Steven S. Tervooren, Hughes
Pfiffner Gorski Seedorf & Odsen, LLC,
Anchorage, for Appellant. Gregory Miller,
Birch, Horton, Bittner & Cherot, Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
WINFREE, Justice.
I. INTRODUCTION
A landowner challenged a municipalitys delay in
replatting and providing an accurate legal description of the
land it took using its power of eminent domain, alleging that it
unnecessarily interfered with his remainder property rights. As
a remedy the landowner requested that the superior court dismiss
the previously approved taking without prejudice or,
alternatively, change the valuation date for determining just
compensation. The superior court denied this motion. Because
the superior court did not err in denying the landowners motion,
we affirm its decision.
II. FACTS AND PROCEEDINGS
In December 2002, as a part of its plan to construct
certain roads, railroad crossings, a sports complex, and an
expansion of the Wasilla Airport, the City of Wasilla commenced a
taking of nine parcels of land belonging to Gary Lundgren. In
January 2003 the City gave notice that it intended to dismiss
three of the parcels from its declaration of taking and from its
eminent domain complaint.1
In March 2003 the superior court concluded that the
City had established both the required authority and necessity to
effect a taking of the remaining six parcels. The superior court
ordered that title and possession to the six parcels be vested in
the City; Lundgren did not appeal from this final judgment.2 The
court retained jurisdiction to adjudicate the amount of just
compensation for both the six parcels taken and the three parcels
temporarily taken. In October 2006 the superior court appointed
a special master to determine the compensation due Lundgren.
In December 2006 Lundgren filed a motion seeking
alternative relief: a dismissal of the taking without prejudice
or a ruling that valuation should be based not on the date of
taking but rather on a later date. Lundgren argued that the City
had violated AS 09.55.275 by leaving him with an otherwise
unlawful, un-platted remainder noting that after filing the
declaration of taking the City did not receive preliminary replat
approval for seven months or record a final replat for three
years.3 The superior court denied the motion in June 2007.
Also in June 2007 the special masters report was
issued, identifying both the December 2002 date for the permanent
taking, and an initial temporary taking of the three parcels from
that same date through February 2, 2004 (when the court formally
approved the removal of the three parcels from the taking). The
special master also noted a secondary temporary taking for two of
the three parcels lasting from February 2, 2004, through May 1,
2007. The special master explained his finding of a second
temporary taking by emphasizing that the City had failed to
provide a proper plat of survey reflecting these parcels, such
that it was impossible for the property owner to dispose of the
land or survey the parcel himself since the City was in the
process of platting the land and there were discrepancies in the
surveys.
In October 2007 the City paid the entire amount of
compensation indicated in the special masters report, as well as
prejudgment interest. In April 2008 the superior court issued a
stipulated final judgment confirming that: (1) the City would
pay Lundgren attorneys fees under Alaska Rule of Civil Procedure
72(k); (2) platting authority rested with the Borough and that
the final replat was in conformity with the courts order; and
(3) title to the six parcels (as described in an attachment to
the final judgment) was fully vested in the City.
Lundgren appeals only one issue: the superior courts
denial of his December 2006 motion for dismissal or an
alternative valuation date.
III. STANDARD OF REVIEW
We apply our independent judgment to the interpretation
of statutes and to our review of the superior courts rulings of
law.4 We review questions of constitutional law de novo,
adopting the rule of law that is most persuasive in light of
precedent, reason, and policy.5
IV. DISCUSSION
We recently provided an overview of the eminent domain
process in Hillstrand v. City of Homer6 and we do not repeat it
here. We simply note that: (1) the process occurs in two
phases; (2) in the first phase the superior court determines
whether the condemnor had authority to take the property and
whether the taking was necessary; and (3) in the second phase the
superior court determines the appropriate compensation to be paid
for the taking.7
At oral argument before this court Lundgrens attorney
rightfully conceded that the actual taking of Lundgrens property
occurred in December 2002. This inescapably leads to the
conclusion that the superior court did not err in denying
Lundgrens motion for a dismissal of the taking or an alternative
valuation date.
First, the superior court overruled Lundgrens
objections to the taking in March 2003, and Lundgren did not
appeal that decision.8 The superior court vested legal title in
the City at that time,9 and subsequent construction of the sports
complex and related facilities established actual, as well as
legal, possession. Rule 72(i)(3) provides that a court may not
dismiss the action as to any part of the property of which the
plaintiff has taken possession or . . . title . . . but shall
award just compensation. The superior court therefore did not
err in denying Lundgrens December 2006 request for a dismissal of
the taking.
Second, Alaska law provides that the valuation date for
a taking is the date of the issuance of the summons,10 which in
this case was in December 2002. We have held this rule valid
under the Alaska Constitution,11 and the United States Supreme
Court also has held that just compensation is best determined on
the date of appropriation.12 The superior court therefore did not
err in denying Lundgrens request for an alternative valuation
date.
We note that Lundgren was not without a remedy for the
alleged interference with his remainder property rights. He
could have pursued additional temporary taking or interference
damages, such as those awarded by the special master to
compensate for the second temporary taking of two of his other
three parcels. Although our recent opinion in Hillstrand makes
clear that the current statutes governing eminent domain do not
establish timelines or deadlines for required plattings,13 we see
no reason why a claim for compensation for a temporary taking,
such as that awarded by the special master for the failure to
timely file a replat, would be unsustainable. Further
compensation in this case might well have been appropriate on a
showing that the City unreasonably interfered with Lundgrens
remainder property rights in a manner that was not addressed by
the special masters award for the actual taking.14 But Lundgren
did not make this argument to the special master or the superior
court, and therefore it is not before us in this appeal.
V. CONCLUSION
We AFFIRM the superior courts denial of Lundgrens
December 2006 motion for a dismissal or an alternative valuation
date.
_______________________________
1 The remaining parties stipulated to this partial
dismissal in January 2004, and in February 2004 the superior
court approved the Citys dismissal of the taking of these
parcels.
2 In the spring of 2003 the City began construction on
the sports complex, which occupied several of the parcels taken
from Lundgren. By the spring of 2004 the sports complex was
completed.
3 Prior to a statutory amendment in 2004, AS 09.55.275
required a condemnor to obtain preliminary plat approval before
acquiring land through eminent domain. AS 09.55.275 (2003); Mun.
of Anchorage v. Suzuki, 41 P.3d 147, 149 (Alaska 2002). But
Lundgren neither raised an objection about the platting process
before, nor filed an appeal from, the entry of final judgment
granting title and possession to the City. Neither the pre-2004
nor the 2004 version of the statute prescribed a definite
deadline for filing a final replat. AS 09.55.275 (2003); ch. 96,
2, SLA 1975; AS 09.55.275 (2004); ch. 32, 2, SLA 2004;
Hillstrand v. City of Homer, ___ P.3d ___, Op. No. 6426 at 10
(Alaska, October 30, 2009).
4 Suzuki, 41 P.3d at 150 (citing Cissna v. Stout, 931
P.2d 363, 366 (Alaska 1996)); R & Y, Inc. v. Mun. of Anchorage,
34 P.3d 289, 293 (Alaska 2001).
5 R & Y, Inc., 34 P.3d at 293.
6 Op. No. 6426.
7 See id. at 7.
8 The City asserts that Lundgren actually is now
belatedly appealing the superior courts March 2003 order
authorizing the Citys taking, a final judgment requiring an
appeal within thirty days. Because Lundgrens December 2006
motion did not dispute issues of authority, necessity, or
possession and because it addressed issues that developed
following the superior courts March 2003 order, this appeal is
not untimely.
9 See AS 09.55.440(a); AS 09.55.460(b).
10 AS 09.55.330 (For the purpose of assessing compensation
and damages, the right to them accrues at the date of issuance of
the summons, and its actual value at that date is the measure of
compensation of the property to be actually taken, and the basis
of damages to property not actually taken but injuriously
affected in the cases where the damages are allowed.).
11 Lazy Mountain Aviation, Inc. v. City of Palmer, 618
P.2d 570, 571 (Alaska 1980) (Numerous cases from jurisdictions
with similar statutes and constitutional provisions hold that the
just compensation requirement is satisfied by fixing the
valuation date as of the commencement of the action.).
12 Kirby Forest Indus. v. United States, 467 U.S. 1, 10
(1984) ( Just compensation, we have held, means in most cases the
fair market value of the property on the date it is
appropriated.).
13 Op. No. 6426 at 10.
14 See State v. Hammer, 550 P.2d 820, 823-27 (Alaska 1976)
(allowing a lessor of property to recover damages for disruption
of his business because our principle of compensation, . . .
instead of looking at the benefit to the condemnor as a measure
of compensation, looks to the loss to the owner, as measured by
an objective standard).
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