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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Anchorage Board of Adjustment v. LBJ, LLC (4/2/2010) sp-6467
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
| ANCHORAGE BOARD OF | ) |
| ADJUSTMENT AND ANCHORAGE | ) |
| SCHOOL DISTRICT, | ) Supreme Court No. S-13337 |
| ) | |
| Appellants, | ) Superior Court No. 3AN-06-04251 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| LBJ, LLC, | ) No. 6467 - April 2, 2010 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Fred Torrisi, Judge.
Appearances: W. Michael Stephenson, David A.
Nesbett, Jermain Dunnagan & Owens, P.C.,
Anchorage, for Appellant Anchorage School
District. Robert A. Royce, Moira K. Smith,
Ashburn & Mason, P.C., Anchorage, for
Appellee.
Before: Carpeneti, Chief Justice, Winfree and
Christen, Justices. [Fabe, Justice, not
participating.]
PER CURIAM
The Anchorage School District appeals the superior
courts decision reversing the Anchorage Board of Adjustments
decision and reinstating that of the Anchorage Platting Board.
We AFFIRM the superior courts decision for the reasons expressed
in that decision, which we attach as an appendix.
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE
LBJ, LLC, )
)
Appellant, )
) Case No. 3AN-06-4251 CI
v. )
)
ANCHORAGE BOARD OF ) Planning Dept. Nos.
S-11099-3 & 4
ADJUSTMENT and ANCHORAGE )
SCHOOL DISTRICT, )
)
Appellees. )
Decision on Appeal*
The Municipality of Anchorage built a new high school
in Eagle River near the end of Yosemite Drive, a road leading to
a subdivision being developed by Appellant LBJ. The Platting
Board found that this required the school district to improve the
road, but the Board of Adjustment reversed based on a Traffic
Impact Analysis, which concluded that no major upgrades were
required. The developer argues that the latter decision was not
supported by substantial evidence, and that because the road was
designated an urban collector, the improvements were required by
the city code.1
Summary of proceedings before Platting Board and Board of
Adjustment
The Eagle Pointe Subdivision is some 93 acres, and has
been under development since 1998. Partially occupied now, it
will eventually have almost 300 residential units, and it is
zoned R-l SL. Access to Eagle River Loop Road and the Glenn
Highway is via Yosemite Drive, which is 24 feet wide, paved, with
gravel shoulders, except for the portion within the Eagle Pointe
Subdivision, which was built to urban collector standards,
meaning it is 33 feet wide, with paved shoulders, curbs, gutters
and streetlights. The road was built by LBJ at the beginning of
its development.
In 2003, the Municipality obtained preliminary approval
to subdivide and rezone a 50 acre tract on the Glenn Highway (SW)
end of Yosemite Drive, for construction of a new high school,
Eagle River High. The Anchorage Assembly approved the rezoning.
The new designation was PLI, Public Lands and Institutions,
within the urban improvement area in LBJs view,2 although ASD
argues that the designation as urban did not take effect, if it
ever did, until well after the 2003 preliminary plat was
approved. The preliminary approval had not required specific
improvements to Yosemite Drive, deferring instead to the
recommendations of the Traffic Impact Analysis, but when the
matter came back to the Platting Board in 2005, it found that
upgrades were required, including sidewalks, a critical safety
issue. The board also concluded that it was important that the
school be allowed to open as scheduled. The Platting Board
accordingly listed the improvements that would have to be made to
the road, but gave the school district time to seek funding
alternatives from the Municipality. The board noted that it was
treating the application as it would for any other entity, and
imposed standards equivalent to urban collector standards, which
would require upgrades similar to those in place on the most
eastern portion of the road curbs, gutters, lighting, paved
shoulders and a separated multi-use path.3
The school district appealed to the Board of
Adjustment. The BOA determined that the Platting Boards decision
was not supported by substantial evidence, substituted its own
judgment, and concluded that Yosemite Drive did not need to be
upgraded to urban collector standards. It instead reinstated the
earlier Platting Board condition requiring negotiation of a
subdivision agreement with the Private Development Section for
construction of any road improvements that may be required by the
final approved Traffic Impact Analysis. It also concluded that
the finding that the lack of a sidewalk was a critical life
safety issue was not supported by substantial evidence. It
declined to address whether the Platting Board exceeded its
authority in requiring specific design standards, whether the
designation of an urban residential area was correct, whether the
school district was a subdivider as that term is used in AMC
2l.75.035, and whether the district could be required to enter
into a subdivision agreement. (It found that ASD had already
agreed to enter into the subdivision agreement to implement the
recommendations of the Traffic Impact Analysis.) The TIA had
concluded that the road could accommodate a school of 800
students without the upgrades required by the Platting Board.
This appeal followed.4
Standard of Review
This appeal is on the municipal record, and the
findings are to be sustained if, in light of the entire record,
they are supported by substantial evidence.5 I am to view the
evidence in favor of the findings, without reweighing and
substituting my judgment.6 Moreover, a presumption of validity
is to be accorded zoning decisions.7 The adequacy of findings
and conclusions, however, does present a legal issue which is
reviewed de novo,8 as are other such issues not involving agency
expertise,9 or which present only a question of statutory
interpretation.10 Questions that do involve agency expertise are
reviewed to determine if they have a reasonable basis.11
ASD disagrees with Appellants statement that I should
view the BOA decision just as the supreme court views one of the
superior court sitting as an intermediate appellate court, and to
the extent this standard conflicts with that stated above, the
school district is correct; deference is afforded to the boards
interpretation within its proper sphere.12 But there may also be
a question of how to interpret an ordinance that says that the
findings of the platting board . . . and the board of adjustment
shall not be reversed if, in light of the whole record, they are
supported by substantial evidence,13 if the two bodies came down
on opposite sides on an important factual issue. Given the
deferential standard,14 it is conceivable that both decisions
could be supported by substantial evidence.15 While courts try
to be consistent in applying the standard of review, it is not
always a completely straightforward exercise.16
Statement of facts and the positions of the parties
The school district emphasizes the chronology of the
proceedings below, noting the long period of time that elapsed
between the preliminary commitment and the hearing at which local
residents turned out at the bidding of LBJ and steamrolled the
platting board into requiring improvements to Yosemite Drive. It
points out that LBJ principal Jose Vincente did not originally
ask for upgrades to urban collector standards, and that the
preliminary plat was approved without objection. The road was
not designated as a collector street until September of 2003, and
the TIA completed in early 2004 concluded that it was adequate
for the projected traffic. Mr. Vincentes appeal of this decision
was rejected as untimely, apparently because condition G of the
preliminary approval required submission of the traffic analysis.
But when approval of the final application dragged on, Mr.
Vincente was able to reopen the public hearing to address issues
relating to Yosemite Drive, based on new evidence or changed
circumstances. The Platting Board was informed that the MOA was
seeking state funding of a project to upgrade the road to urban
collector standards, although staff recommended against requiring
ASD to require this.
At the March 8, 2005 Assembly meeting, Mr. Vincente
testified that ASDs construction of a new school was subject to
title 21 of the municipal code, and improvements to Yosemite
Drive were needed. The school district agreed that it was bound
by title 21, but noted that the municipality builds roads and ASD
doesnt. The major road issue discussed at this meeting and the
subsequent school board meeting concerned drainage, and the
Assembly deferred to the Platting Board.
By letter of March 31, 2005, LBJ noted that it was now
time for the Platting Board to determine the most compatible
improvement area under AMC 21.85.020(E). The letter urged that
the designation be urban, and argued, as Appellant does in this
appeal, that this meant that the road would have to be upgraded
by the district to the urban standards set forth in AMC
21.85.030(A), which does indeed list curbs and gutters,
sidewalks, walkways and street lighting.17 At the public hearing
in April, the Platting Board heard from both sides on this issue,
and approved a motion that Yosemite Drive be improved to
collector status. While it was originally contemplated that this
would happen before the new school opened in the fall, calmer
heads prevailed and the requirement was delayed, as reflected by
the June 1 decision of the Platting Board.
Since LBJs position is that the urban classification means
that the road upgrades are required by the ordinance, the
district argues that the Platting Board never did find that the
school site should be placed in an urban improvement area. It
also argues that the BOA decision is supported by substantial
evidence, and that if upgrades are necessary, the Municipality is
responsible for them. ASD also maintained in both its briefing
and at oral argument that, for a variety of reasons, setting
aside the BOA decision and reinstating the Platting Boards would
be unfair. Each of these issues will be addressed in turn.
Did the Platting Board place the new school in an urban
improvement area?
LBJ starts from the premise that the Platting Board
placed the school subdivision in an urban improvement area. It
quotes the head of MOAs planning director that upon adoption of
the PLI zone by the Assembly, the property will be subject to
urban development standards. The full quotation is set forth in
the opening brief, and the Platting Board adopted a resolution a
month later that said basically the same thing: Yosemite Drive
was designated a collector street in 2003, and if rezoned to PLI,
the effect would be to subject the property to urban rather than
rural road improvement development standards under AMC 21.85.020.
A month later, the Assembly did just that, and that change was
duly noted by the Platting Board in its discussion before
adoption of its decision on June 1.
But ASD still contends that the board failed to make
the necessary finding that the school site should be placed in an
urban improvement area. It points to the April 20, 2005 meeting
in which the board did not act on a specific request for such a
finding, and to the vote on an amendment to use the words urban
collector standards in Condition 11. It also notes that much of
Tract A is undeveloped and could reasonably be designated rural.
The ordinances, however, require the Platting Board to
place a subdivision within the PLI zoning district in the
improvement area that it finds to be most compatible with the
proposed use of the parcel and the zoning district
classifications of the surrounding area.18 The Eagle Pointe
Subdivision, east of the school and parcel A in the site plan, is
zoned R-1, which is by ordinance an automatically urban
designation, and parcels C and D, west and northwest, are I-2
(industrial), also urban.19 Eagle River Loop road, which
intersects Yosemite and connects it with the highway, is also
zoned residential. The Mental Health Trust owns parcel B, zoned
PLI, which is also the case with the lands to the north and west
of the area. There is a greenbelt to the northeast.
In addition to arguing that the urban designation is
the most compatible with the area, LBJ notes that the district
argued to the Board of Adjustment that the Platting Board took
that action, and that the BOA characterized the issue raised in
the appeal as whether the board erred in determining that the
Eagle River High School site should be designated urban under AMC
21.85.020. While it ultimately concluded that it did not need to
resolve this issue, Appellant is correct that this is the only
way to read the administrative record. The Platting Board placed
the school site in an urban improvement area, and then, even
while declining to directly apply the ordinance, imposed
requirements equivalent to those found in AMC 21.85.030(A).
How should the two decisions on urban collector standards be
analyzed?
Neither the Platting Board nor the BOA expressly
decided whether the urban designation meant that Yosemite Drive
had to be upgraded to urban collector standards, with the former
board mandating equivalent improvements, and the latter
determining that the decision to require the upgrades was not
supported by substantial evidence. The Board of Adjustment then
concluded that it did not need to decide whether the Platting
Board exceeded its authority in requiring the improvements. LBJ
argues that not only did the Platting Board have the power to
impose urban collector standards, but that both it and the BOA
were required to do so by AMC 21.85.030(A).
The platting authority may only approve plats that
conform to chapters 21.75 through .85 of the municipal code,20
and 21.85.030 provides that the subdivider shall construct and
install the improvements provided by this section for the
improvement area where the subdivision is located. Subsection A
of this ordinance lists those items required for the urban areas,
and they are basically the same improvements required by the
Platting Board. The Board finessed the question of whether the
standards applied directly, worrying about precedent, and then
the district argued on appeal that specific design standards
proposed by the developer couldnt be imposed upon it in this way.
But it is difficult to understand exactly how the standards might
have been thought not to apply, given the understanding that ASD
would be treated as any other subdivider21 and the
straightforward language of the municipal ordinances.
ASD essentially argues that such a result would not be
fair all that was originally sought was an improvement to the
roads shoulders, the preliminary plat did not contain the
requirements, and Yosemite Drive wasnt designated a collector
street until after approval of the preliminary plat. The TIA
concluded that the road was adequate. The Chugiak Birchwood
Eagle River Rural Road Service Area has the authority to upgrade
the road. Historically, MOA and not the district has funded such
improvements. Money has been requested from the Legislature.
These latter contentions will be addressed next, followed by an
attempt to apply the standard of review to the conflicting
decisions of the two boards that considered the issue, and then a
brief discussion of fairness and procedural due process.
Is the Municipality rather than ASD responsible for the upgrades?
The Board of Adjustment concluded that the Chugiak
Birchwood Eagle River Rural Road Service Area (CBERRRSA) had the
authority but not the responsibility to fund and construct
improvements to Yosemite Drive. Without providing any authority
to demonstrate that the board erred in this regard, ASD argues
that the record is absolutely clear that the Municipality and not
it has historically funded and constructed road improvements
adjacent to schools, and that CBERRRSA is the responsible service
area. It further notes that if MOA requested a grant from the
Legislature to pay for the improvements, that using state money
would trigger federal funding. It accuses LBJ and residents of
the Eagle Pointe Subdivision of clamoring for immediate
improvements to improve their own situation at public expense.
As was observed above, ASD has not argued that it
should be treated differently than any other subdivider. It is
therefore incumbent upon it to provide the analysis and authority
for its position. While it provides the germ of an argument with
its contention that it shouldnt have to provide improvements for
the entire length of Yosemite Drive, it fails to develop this, or
to show how the history and politics involved advance its
position under the applicable ordinances. LBJ built the road to
the required standard within its subdivision, and the district is
essentially being held to the same standard, albeit to a longer
stretch of the road and in a context that evolved over time.
Nor is the relationship between ASD and the Municipality
raised in this
appeal. This is a complex subject, which has a number of checks
and balances,22 and which has been addressed to some extent by
Alaska law.23 A conclusion that ASD is responsible for the
upgrades in no way precludes city or even state funding of the
project. But absent some answer to the seemingly universal
requirements of the Code,24 the Districts argument that the
CBERRRSA is directly responsible for the upgrades must fail.
What does the substantial evidence test mean in this context?
As noted earlier, this courts review of factual
determinations does not allow for re-weighing of the evidence; a
finding is to be sustained if supported by substantial
evidence.25 But AMC 21.30.190 gives this deferential standard to
both boards, and they arrived at different conclusions as to
whether Yosemite Drive had to be upgraded to urban collector
standards. Specifically, the Board of Adjustment found that the
Platting Boards decision requiring the upgrade of Yosemite Drive
to urban collector standards was not supported by substantial
evidence. It then substituted its judgment and reinstated the
condition that only required compliance with the recommendations
of the Traffic Impact Analysis.
Consistent with this conclusion, the school district
argues that the TIA provided a valid basis for the BOA decision.
LBJ responds to this by pointing out flaws in the analysis, and
there is ample material in the record from which to support
either conclusion. The BOA did not discuss the evidence in its
decision, citing only to the TIA, and disagreeing with the
conclusion that the increased traffic volume and safety concerns
constituted substantial evidence for the decision of the Platting
Board. The BOA also cited testimony that there was already a
trail from the subdivision to the school, and concluded that the
finding that the absence of a sidewalk posed a critical life
safety issue was not supported by substantial evidence. LBJ
contends that there was indeed substantial evidence that the
street is too narrow and too dark for winter use by pedestrians,
especially students.
But despite the briefing and argument, it still isnt
apparent how the Board of Adjustment reached its decision, or
that there is a genuine issue of material fact raised by this
appeal. The first predicate fact to the Platting Boards decision
was that Yosemite Drive was a collector road. The BOA never
disagreed with this finding, which seems wholly in line with the
terms definition.26 Next, the Platting Board found that the
subdivision had been rezoned PLI by the Assembly, and the BOA
likewise did not disagree with this finding. When a subdivision
is rezoned PLI, the Platting Board must place it within the
improvement area that it finds to be most compatible with the
proposed use of the subdivision and zoning of the surrounding
area.27 Having reached this point, the Platting Board was
required to decide which improvement area under AMC 21.85.020 was
most appropriate for the new Eagle River High School Subdivision,
as was discussed earlier. ASD has simply never explained how it
is that the BOA could leave this analysis essentially unchanged,
and yet conclude that urban collector standards dont apply to
this particular stretch of road. Accordingly, the issue posed is
a legal one, and ASD has failed to supply a reasonable basis for
the decision made by the Board of Adjustment. And, while the
finding of the Platting Board that the improvements are justified
by safety concerns might be sustained as supported by substantial
evidence, it is not necessary to reach this issue, since I
conclude that if Yosemite Drive is an urban collector street, the
ordinance requires the improvements by operation of law.
Was ASD denied due process or treated unfairly?
As noted earlier, the school district devoted
substantial portions of its memorandum and oral argument to the
chronology of the proceedings below and the reasons why reversal
of the BOA decision would be unfair to it and the citizens of
Anchorage. Yosemite Drive was not designated a collector street
at the outset, and the preliminary plat did not require the
upgrades that were later deemed necessary. ASD maintains that
this didnt allow it to budget for the improvements and obtain the
necessary appropriation.
One might imagine that private developers would make a
similar pitch, when unanticipated environmental or other costs
raise the price, and the first question would be whether the
improvements are actually required. That will often be a factual
issue, and if the developer was denied an opportunity to fully
present evidence or was otherwise disadvantaged in the
proceedings, a remand might be necessary to assure a fair
process. But if the law is unambiguous and doesnt turn on a
factual dispute, the fact that the cost may have been unforeseen
will not give rise to any remedy on appeal. Nor does the
districts perfunctory invocation of due process help its cause,
since even if treated as a party entitled to constitutional
protection it fails to point to a failure of notice or
opportunity to be heard, but rather asks for a result that
appears to be contrary to what is required by the Municipal Code.
By definition, the process contemplates that changes might be
made to a preliminary plat. While the district may feel
snookered by the unique chronology and late-breaking politics,
the result should have been predictable as far back as September
of 2003, when the transportation plan was amended to designate
Yosemite Drive a collector, and I find no unfairness to the
district.
Conclusion
The district has agreed from the outset that it was
subject to title 21 of the Municipal Code. While it is true that
significant effort in the administrative proceedings was devoted
to issues of traffic and safety, and that the Platting Board did
not directly rule that Yosemite Drive was an urban collector, it
does appear that there is no other way to read the record.
Accordingly, the issue presented in this appeal is more narrow
must a subdivider upgrade a road to the standards set forth in
AMC 21.85.030(A) when, prior to approval of a final plat, the
road is found to be a collector road in an urban improvement
area? I conclude that the answer is yes. While a traffic study
might be used to require improvements to a road not designated an
urban collector, it cannot be used to dispense with those
required by the Code, at least not without going through the
variance procedure. Accordingly, the decision of the Board of
Adjustment is reversed and that of the Platting Board reinstated.
Dated: October 15, 2008
/s/ Fred Torrisi
Superior Court Judge
_______________________________
* The superior courts Decision on Appeal has been edited
to conform to our style and formatting requirements and most
internal citations have been omitted.
1 Anchorage Municipal Code (AMC) 21.85.030.
2 See AMC 21.85.020(E).
3 See AMC 21.85.030(A).
4 AMC 21.30.180; AS 22.10.020(d); Alaska R. App. P.
601(a).
5 S. Anchorage Concerned Coal., Inc. v. Coffey, 862 P.2d
168, 173 (Alaska 1993); AS 29.40.060; AMC 21.30.180(A), 190.
6 Raad v. State Commn for Human Rights, 86 P.3d 899, 903
(Alaska 2004).
7 S. Anchorage Concerned Coal., 862 P.2d at 173 (citing 3
Edward Ziegler, Rathkophs The Law of Zoning and Planning, 42.07
at 42-65 (1992)).
8 Raad, 86 P.3d at 904; Alvarez v. Ketchikan Gateway
Borough, 28 P.3d 935, 938 (Alaska 2001).
9 Holding v. Municipality of Anchorage, 63 P.3d 248, 250
(Alaska 2003).
10 Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903-904 (Alaska 1987).
11 Id. at 903.
12 S. Anchorage Concerned Coal., 862 P.2d at 173 n.12;
Vill. of Eklutna v. Bd. of Adjustment, 995 P.2d 641, 643 (Alaska
2000).
13 AMC 21.30.190.
14 See Ketchikan Gateway Borough v. Ketchikan Indian
Corp., 75 P.3d 1042, 1045 (Alaska 2003).
15 See AMC 21.30.095 (Board of Adjustment decisions on
appeal).
16 See generally Galt v. Stanton, 591 P.2d 960, 966-67
(Alaska 1979) (Rabinowitz, J., concurring).
17 AMC 21.85.030(A)(3)-(6).
18 AMC 21.85.020(E).
19 AMC 21.85.020(A).
20 AMC 21.75.010(A)(1).
21 AMC 21.75.035.
22 Homeward Bound, Inc. v. Anchorage School Dist., 791
P.2d 610, 612 (Alaska 1990).
23 AS 14.14.060-065.
24 AMC 21.85.010.
25 See note 5, above.
26 AMC 21.35.020.
27 AMC 21.85.020(E).
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