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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Yankee v. City and Borough of Juneau (10/20/2017) sp-7206

Yankee v. City and Borough of Juneau (10/20/2017) sp-7206

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  

                                                                                                                          

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                      



BILL  YANKEE,                                                   )  

                                                                )          Supreme  Court  No.  S-16098  

                                Appellant,                      )  

                                                                                                                                    

                                                                )          Superior Court No.  1JU-14-00681 CI  

                     v.                                         )  

                                                                                                

                                                                )          O P I N I O N  

                                          

CITY AND BOROUGH OF                                             )  

                                

JUNEAU, CHRIS GILBERTO,                                                                                            

                                                                )          No. 7206 - October 20, 2017  

                  

and ANN GILBERTO,                                               )  

                                                                )  

                                Appellees.                      )  

                                                                )  



                                                                                                               

                                                  

                     Appeal from the Superior Court of the State of Alaska, First  

                                                                                                

                     Judicial District, Juneau, Louis J. Menendez, Judge.  



                                                                                                     

                     Appearances: Robert S. Spitzfaden, Gruening & Spitzfaden,  

                                                                                                        

                     APC, Juneau, for Appellant. Robert H. Palmer, III, Assistant  

                                                                                                     

                     Municipal  Attorney,  and  Amy  Gurton  Mead,  Municipal  

                                                                                                                        

                     Attorney, Juneau, for Appellee City and Borough of Juneau.  

                                                                                                              

                     No  appearance  by  Appellees  Chris  Gilberto  and  Ann  

                      Gilberto.  



                                                                                                          

                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                                          

                      and Carney, Justices.  



                                            

                     MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                      

                     A landowner contends that his neighbors' fenceviolatestwo restrictive plat  



                                                                                                                                             

notes.  The neighboring properties are in two different subdivisions, and the landowner  


----------------------- Page 2-----------------------

                                                                                                                        

is therefore not bound by the same restrictive plat notes that he seeks to enforce against  



his neighbors.  The landowner complained about the fence to the Director of Juneau's  



                                                                                                                             

Community Development Department, but the Director responded that the fence was  



                                                         

allowed, citing longstanding policy.  



                                                                                                                              

                    The landowner appealed to the Planning Commission, which affirmed the  



                                                                                                                         

Director's decision.   The landowner next appealed to the Juneau Assembly, which  



                                                                                                                              

rejected his appeal for lack of standing.  The landowner appealed this decision to the  



                                                                                                                           

superior court, which affirmed the Assembly's reliance on standing as grounds to reject  



                                                                  

the appeal.  The landowner appeals to us.  



                                                                                                                               

                    We conclude that the Director's decision was an appropriate exercise of his  



                                                                                                                   

enforcement discretion, not ordinarily subject to judicial review.  On that alternative  



                                                                                                                              

ground we affirm the superior court's dismissal of the appeal. We decline to address the  



                                                                                                                                 

standing issue on which the Assembly and the superior court based their decisions.  



                                 

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                              

                    An undeveloped greenbelt buffer runs between Bill Yankee's property and  



                                                                                                                

the back of Chris and Ann Gilbertos'.  The two properties are in different subdivisions  



                                                                                                                     

and therefore subject  to  different covenants:                          Yankee's property is in the Nunatak  



                                                                                                                            

Terrace Subdivision whereas the Gilbertos' is in the Montana Creek Subdivision.  



                                                                                                                                    

                    The  Gilbertos  built  a  fence  along  their  side  of  the  greenbelt  buffer.  



                                                                                                                 

According to theGilbertos, they checked withtheCommunity Development Department  



                                                                                                                           

(CDD) of the City and Borough of Juneau (CBJ) before building the fence and were  



                                                                                                                          

repeatedly  assured  that  it  was  allowed.                     But  Yankee  -  concerned  that  the  fence  



                                                                                                                       

interfered with the movement of ducks through the greenbelt - asserted that it violated  



                                                               -2-                                                        7206
  


----------------------- Page 3-----------------------

                                              1  

two plat notes                                   on the recorded plat of the Montana Creek Subdivision applicable to its                                                                                                                                                          



southern boundary line, where it adjoins Nunatak Terrace and another subdivision. One                                                                                                                                                                                      



of the plat notes requires a "30 [foot] 'no-build' structure setback"; the other requires "no                                                                                                                                                                                 



                                                                                                                                                                                                                                            2  

disturbance to [a] 20 [foot] natural green belt & visual buffer easement."                                                                                                                                                                       



                      B.                    Proceedings  



                                           Yankee first brought his complaint about the Gilbertos' fence to the CDD.  

                                                                                                                                                                                                                                                                                           



The Director's response, in the form of a four-page letter addressed to Yankee, began by  

                                                                                                                                                                                                                                                                                 



stating that its purpose was "to clarify the [CDD] policy regarding fences and to formally  

                                                                                                                                                                                                                                                              



notify you of my decision as CDD Director regarding this case."  What followed was a  

                                                                                                                                                                                                                                                                                      



                      1                    A plat is a scale drawing - in this case of a subdivision.                                                                                                                                   A note on that                       



plat   acts   as   a   restrictive   covenant.     See   City   and   Borough   of   Juneau   Code   (CBJ)  

    49.15.440(4)   (March   2013)  (renumbered   with   slight   language   changes   in   CBJ  

  49.15.412(b) (June 2017)) ("When such a condition of approval [of a subdivision's                                                                                                                                                      

final plat] entails a restriction upon the use of all or part of the property being subdivided,                                                                                                                                                    

a note specifying such restrictions shall be placed on the face of the plat. Such note shall                                                                                                                                                                              

constitute a restrictive covenant in favor of the municipality and the public, and shall run                                                                                                                                                                                  

with theland,                               enforceableagainst                                             all subsequent owners."). Many                                                                          provisions in the 2013  

version of the code, in effect when Yankee first complained to the CDD, remain the same                                                                                                                                                                                  

in the current code. We note where the versions differ but for simplicity refer to the CBJ                                                                                                                                                                                                 

in the present tense.                         



                      2                     These plat notes summarize conditions that were explained in more detail  

                                                                                                                                                                                                                                                                       

by CDD staff during the plat approval process:  

                                                                                                                              



                                            The concept plan must be modified to include a greenbelt and  

                                                                                                                                                                                                                                   

                                           visual buffer setback for all lots on the outer perimeter of the  

                                                                                                                                                                                                                                    

                                            concept  plan  site  including  Montana  Creek  Road.                                                                                                                                The  

                                                                                                                                                                                                                             

                                            setback shall provide that no building or structure may be  

                                                                                                                                                                                                                                     

                                            located closer than 30 feet to a perimeter lot line and that the  

                                                                                                                                                                                                                                    

                                            outermost 20 feet of the setback area must be left in natural  

                                                                                                                                                                                                                       

                                           vegetation and topography.   The setback area . . . shall be  

                                                                                                                                                                                                                                     

                                           maintained to preserve an effectivevisual screening along the  

                                                                                                                                                                                                                                     

                                           perimeter using vegetation.  

                                                                                                                                      



                                                                                                                                        -3-                                                                                                                              7206
  


----------------------- Page 4-----------------------

                                                                                                                          

description of the subdivisions' development and an explanation of CBJ's fence policy  



                                                                                                                            

going back "to at least 1999." The Director explained that the Montana Creek plat notes  



                                                                                                                               

were primarily intended to "ensure that existing vegetation would be preserved" in the  



                                                                                                                               

greenbelt buffer area so that neighboring properties would be shielded from the new and  



                                                                                                                             

denser Montana Creek subdivision; heexplained that fences,withsomelimitations, were  



                                                                                                    

actually consistent with those purposes.  The Director's decision concluded:  



                                                                                                            

                              The fence in this particular case was constructed in  

                                                                                                      

                    such a way as to be consistent with the standing CDD policy  

                                                                                                         

                    and appears to be of minimal visual impact since it is wire  

                                                                                                           

                    and less than five feet tall.   The wire fence allows for the  

                                                                                                          

                    vegetative buffer to show through unlike other fences that  

                                                                                                          

                    might allow for greater privacy.  It appears reasonable that  

                                                                                                   

                    the property owner would want to denote where his property  

                                                                                                            

                    line is and where the neighboring properties begin and to do  

                                                                                              

                    this  [in]  a  manner  that  does  not  impair  the  neighbor's  

                                                                                       

                    enjoyment of the greenbelt, since the same right is afforded  

                                                                                              

                    to the non-Montana Creek subdivision property owner.  



                                                                                                                                     

                    Yankee appealed the Director's decision to the CBJ Planning Commission.  



                                                                                                                            

The Commission rejected his appeal on its merits, finding that the plat notes were  



                                                                                                                         

ambiguous and that Yankee failed to demonstrate that the fence was prohibited. Yankee  



                                                                                                                               

next appealed to the CBJ Assembly, which also rejected his appeal, though not on the  



                                                                                                                  

merits.  The Assembly relied instead on a memorandum from the CBJ Law Department  



                                                                                                                             

concluding that Yankee lacked standing to enforce the plat notes because he did not own  



                                                                

property in Montana Creek Subdivision.  



                                                                                                                  

                    Yankeethen appealed tothesuperior court, which affirmed theAssembly's  



                                                                                         

decision that he lacked standing.  Yankee appealed to this court.  



                                                               -4-                                                         7206
  


----------------------- Page 5-----------------------

III.        STANDARD OF REVIEW               



                       "When the superior court acts as an intermediate court of appeals in an                                                   



                                                                                                                                                   3  

administrative matter, we independently review the merits of the agency's decision."                                                                   



                                                                                                                                      

Because the scope of appellate jurisdiction "does not 'implicate special agency expertise  



                                                                                                                                      

or the determination of fundamental policies within the scope of the agency's statutory  



                                                                                                                                       4  

                                                                                                                         

function,' we will substitute our independent judgment for that of the agency." 



                                                                                                                                      

                       Although courts generally refrain from reviewing an executive agency's  



                                                                                                                                          

exercise of discretionary enforcement authority, we have observed that we may review  



                                                                                                                                                 

such an exercise to insure its "conformity with law and that it is not so capricious or  



                                                             5  

                                                                

arbitrary as to offend due process." 



IV.         DISCUSSION  



                       Yankee's opening brief in this appeal focused on the issue of standing -  

                                                                                                                                                 



the sole ground on which the Assembly and the superior court declined to hear the merits  

                                                                                                                                           



of his appeal from the Director's decision.  CBJ, in its appellee's brief, raised the issue  

                                                                                                                                             



of subject matter jurisdiction; it characterized the Director's decision as either (1) an  

                                                                                                                                                 



attempt to adjudicate a private dispute, for which the CDD lacked jurisdiction; (2) a  

                                                                                                                                                   



"policy advice letter" which the CDD had authority to issue but from which there was  

                                                         



no right of appellate review; or (3) a discretionary enforcement decision which the CDD  

                                                                                                                                            



had authority to make but from which, again, there was no right of appellate review.  In  

                                                                                                                                                  



his reply briefYankeepushed back againstthecharacterization oftheDirector's decision  

                                                                                                                                       



            3          S.  Anchorage  Concerned  Coalition,  Inc.  v.  Municipality  of  Anchorage  Bd.  



of  Adjustment ,  172  P.3d  768,  771  (Alaska  2007)  (citing  Williams  v.  Abood ,  53  P.3d  134,  

 139  (Alaska  2002)).  



            4          Id. (quoting Alaska Pub. Emps. Ass'n v. State, 831 P.2d 1245, 1247 (Alaska  

                                                                                                                                        

 1992)).  



            5           Vick  v.  Bd.  of  Elec.  Examiners,  626  P.2d  90,  93  (Alaska  1981)  (citing  K  &L  

                                                                                                                                                   

Distribs., Inc. v. Murkowski, 486 P.2d 351, 358 (Alaska 1971)).  

                                                                                                                

                          

                                                                        -5-                                                                 7206
  


----------------------- Page 6-----------------------

 as an "advisory opinion" (or "advice letter"), contending that although the decision                                                                                                                                                                                                                                                                                                                                                                                       



 "clarifie[d] the CDDfence                                                                                                                                 policy," in doing so it resolved Yankee's complaint "pursuant                                                                                                                                                                                                                                               



to the Director's enforcement authority."                                                                                                                                                                                                             



                                                                               We agree with CBJ that the dispositive issue is one of reviewability.                                                                                                                                                                                                                                                                                                                                                   We  



hold   that   the   Director's   decision   was   an   appropriate   exercise   of   his   enforcement  



 discretion that we should not review. In reaching this holding we do not find it necessary                                                                                                                                                                                                                                                                                                                                                                    



to consider whether the decision was properly appealable within the CBJ administrative                                                                                                                                                                                                                                                                                                                                                     



hierarchy - from the CDD to the Planning Commission to the Assembly - nor do we                                                                                                                                                                                                                                                                                                                                                                                                                               



 decide the standing issue that the superior court found dispositive.                                                                                                                                                                                                                                                                                                                                          We focus only on                                                                                



whether   a   discretionary   enforcement   decision,   with   whatever   layers  of   review   the  



 executive has given it, should also be subject to our review.                                                                                                                                                                                                                                                                                                      



                                        A.	                                     The Director Has Enforcement Authority Over Matters Relevant To                                                                                                                                                                                                                                                                                                                                                                                       

                                                                               Yankee's Complaint.                                                                                                                                              



                                                                                The Director's consideration of the case was apparently prompted first by                                                                                                                                                                                                                                                                                                                                                       



 communications from the Gilbertos,                                                                                                                                                                                              who,   after   receiving   complaints from Yankee,                                                                                                                                                                                                                                                   



 sought reassurances from the CDD that their fence was allowed.                                                                                                                                                                                                                                                                                                                                The CDD then heard                                                                             



 from Yankee                                                                       himself   by   telephone.     According  to   a   CDD   planner's   record   of   the  



 conversation, Yankee relied on the Montana Creek plat notes to support his position that                                                                                                                                                                                                                                                                                                                                                                                                                 



the fence should "come down ideally" and "[i]f that can't be done, then he'd like holes                                                                                                                                                                                                                                                                                                                                                                                                         



 cut into the fence so that nesting ducks are able to travel back and forth over the ponds                                                                                                                                                                                                                                                                                                                                                                                                  



between the two lots."  In the context of the CDD's authority, as explained below, we                                                                                                                                                                                                                                                                                                                                                                             



view Yankee's request as one for enforcement:                                                                                                                                                                                                                                                  a request that the CDD, by whatever                                                                                                                                      

means, require the Gilbertos to remove or significantly alter their fence.                                                                                                                                                                                                                                                                                                                                                                6  



                                        6                                       On appeal Yankee contends that he was seeking a                                                                                                                                                                                                                                       change in CBJ policy and   



that he recognized that either he or the CDD would have to follow up any policy change                                                                                                                                                                                                                                                                                                                                                                                                

with an enforcement action directed specifically against the Gilbertos' fence.                                                                                                                                                                                                                                                                                                                                                                                                      At the   

                                                                                                                                                                                                                                                                                                                                                                                                                                                  (continued...)  

                                                                                                                                                                                                                                                         -6-	                                                                                                                                                                                                                                       7206
  


----------------------- Page 7-----------------------

                             To appropriately categorize the Director's response, we must first review                                                                         



the sorts of decisions the Director is authorized to make.                                                                          The City and Borough of                              



Juneau Code  49.10.500 authorizes the Director "to carry out all of the duties as set                                                                                                  



forth in [title 49] and title 19."                                       We find no relevant authority in title 19 ("Building                                         



Regulations") and therefore look to title 49. As relevant here, that title gives the Director                                                                               

                                                                                                  7  (2) approval of "minor subdivisions" and  

authority in three main areas: (1) permitting;                                                                                                                                        

zoning districts;8   and (3) enforcement.9                                                  It is evident that the Director's decision on  

                                                                                                                                                                                        



Yankee's  complaint  was  not  grounded  in  his  permitting  authority.                                                                                                 Although  

                                                                                                                                                                      



CBJ  49.15.310 grants such authority for individual "minor developments," fences  

                                                                                                                                                                                



under six feet, like the Gilbertos' five-foot fence, do not require a permit under CDD  

                                                                                                                                                                                  



policy.   Nor did Yankee's complaint implicate the Director's approval authority for  

                                                                                                                                                                                       

                                                                                               10     We conclude that it was the Director's  

"minor subdivisions" and zoning districts.                                                                                                                             

                                                                             



enforcement authority that allowed him to consider and respond to Yankee's complaint.  

                                                                                                                                                                       



               6(...continued)  



                                                                                                                                                                                    

time, however, Yankee appeared to be asking the CDD to take immediate action.  The  

                                                                                                                                                                                         

one relevant writing of his that is in our record and predates the Director's decision -  

                                                                                                                                                                                

an email to the Director - states that he is waiting for the "the decision on said fence"  

                                                                                                                                                                                            

but does not understand "your office allowing this fence to remain in place (clearly a  

                                                                                                                                                                                        

violation of subdivision plat) while your staff conducts an open-ended study looking for  

                                                                                                                                                                          

any criteria to 'authorize' this fence," and that he is "again requesting that this 'setback'  

                                                                                                                                                                                       

be honored, while the above research/study is conducted."  This is consistent with the  

                                                                                                                                                                                   

CDD planner's record that "Mr. Yankee wants the fence to come down ideally."  



               7             CBJ  49.15.310.  

                                            



               8             CBJ  49.10.510.  

                                            



               9             CBJ  49.10.600-.660.  

                                                



               10            See CBJ  49.10.510.  

                                                                               



                                                                                            -7-                                                                                    7206
  


----------------------- Page 8-----------------------

                       As Yankeeasserts,theDirector'senforcementauthorityextendstopotential                                            



                                  11                                                                                                     12  

plat note violations,                                                                                                                          

                                      for which the law provides a variety of enforcement tools.                                              The  



                                                                                                                                        

Director thus had the authority to hear and respond to Yankee's complaint.  Indeed,  



                                                                                                                                                 

Yankee  agrees  that  the  Director's  decision  of  his  complaint  was  an  exercise  of  



                                                                                                                                          

 enforcement authority, though he disputes the conclusion that it should therefore escape  

                           13    But as discussed in the next section, we disagree.   The Director's  

                                                                                                                                   

judicial review. 



decision not to take enforcement action against the Gilbertos' fence was a discretionary  

                                                                                                                               



one that is not ordinarily subject to judicial review.  

                                                                                          



            B.         We Decline To Review The Director's Decision.  

                                                                                              



                       CBJ argues that the Director's decision - as an "advice letter" on CDD's  

                                                                                                                                         



 enforcement  policy  -  was  not  in  fact  appealable  within  the  CBJ  administrative  

                                                                                                                           



hierarchy. Yankee points to CBJ ordinances that provide for appeals as a matter of right  

                                                                                                                                             



            11         See CBJ  49.15.440(4) (March 2013) (renumbered with slight language  



                                                                                                                                                 

changes in CBJ  49.15.412(b) (June 2017)) ("Any such restrictive covenant may be  

                                                                                                                                                

enforced  against  the  subdivider  or  any  subsequent  owner  by  the  municipality  by  

                                                                                                                                         

injunction  or  other  appropriate  action,  in  the  same  manner  as  a  permit  or  permit  

                                                                                 

condition, pursuant to CBJ 49.10.600-660 . . . .").  



            12         See  CBJ    49.10.600(a)  (emergency  powers);  CBJ    49.10.620(a)  

                                                                                                                              

 (compliance  order);  CBJ    49.10.630  (civil  action);  CBJ    49.10.640  (criminal  

                                                                                                                                    

penalties); CBJ  49.10.650 (inspection warrant).  

                                                                                       



            13         To distinguish the Director's decision from a statement of CBJ policy -  

                                                                                          

an unreviewable "advisory opinion" -Yankee argues, for example, that "[t]he Decision  

                                                                                                                                      

clarifies  the  CDD  fence  policy  resolving, pursuant  to  the  Director's  enforcement  

                                                                                                                               

authority, the complaint brought by Mr. Yankee"; he also faults CBJ for not citing cases  

                                                                                                                                            

in its appellee's brief holding that "subject matter jurisdiction [was] lacking when an  

                                                                                                                                                 

administrative official with jurisdiction over enforcement exercised th[at] enforcement  

                                                                                                                                

authority."  (Emphasis added.)  

                                                       



                                                                        -8-                                                                 7206
  


----------------------- Page 9-----------------------

                                                                                                                                       14  

to   the   Commission   and   then   to   the   Assembly.                                                                                      But   whether   CBJ   could   and   did  



authorize various levels of                                                  administrative   review of the Director's decision is of no                                                                                               



consequence to us if the decision is of a type that is not ordinarily subject to further                                                                                                                                    



appellate review in the courts.                                                       



                                     As explained above, we view the Director's decision as an exercise of his                                                                                                                         



enforcement authority, that is, a decision not to act on Yankee's complaint.                                                                                                                                     Generally,  



courts decline to review executive-branch decisions                                                                                           not  to prosecute an individual or                                                      not  



to enforce a law under particular circumstances. While issues of enforcement discretion                                                                                                                             

                                                                                                            15 our cases provide a framework for considering  

arise more often in the criminal context,                                                                                                                                                                      



them in the civil context as well.  In Public Defender Agency v. Superior Court, Third  

                                                                                                      



Judicial District, we considered whether the superior court could order the attorney  

                                                                                                                                                                                                                        



general to prosecute a civil contempt proceeding for a parent's failure to pay child  

                                                                                                                                                                                                                                

 support.16   We held it could not.17   We observed that under the common law the attorney  

                                                                                                                                                                                                                         



general's "discretionary control over  the legal business of the state,  both  civil  and  

                                                                                                                                                                                                                     



                   14                See  CBJ  49.20.110(a) ("Review by the commission of a decision of the                                                                                                                           



director[] may be requested by filing a notice of appeal . . . .                                                                                                  The appeal shall be heard                                     

unless it presents only minor or routine issues . . . ."); CBJ  49.20.120 ("Appeal to the                                                                                                                                             

assembly is a matter of right.").                                                        



                   15                See, e.g., State v. District Court, 53 P.3d 629, 631 (Alaska App. 2002)  

                                                                                                                                                                                                                              

 ("Both the Alaska SupremeCourt and[the Court of Appeals] have declared that charging  

                                                                                                                                                                                                                       

decisions are committed to the discretion of the executive branch; so long as these  

                                                                                                                                                                                                                                

decisions are exercised within constitutional bounds, they are not subject to judicial  

                                                                                                                                                                                                                          

control or review.").  

                                                           



                   16                534 P.2d 947, 948 (Alaska 1975).  

                                                                                                                 



                   17                Id. at 950-51.  

                                                     



                                                                                                                    -9-                                                                                                          7206
  


----------------------- Page 10-----------------------

                                                                                                                                                                                               18  

criminal, includes the initiation, prosecution, and disposition of cases."                                                                                                                           We adopted   



the rule that "[w]hen an act is committed to executive discretion, the exercise of that                                                                                                                                      



discretion within constitutional bounds is not subject to the control or review of the                                                                                                                                         



courts," because "[t]o interfere with that discretion would be a violation of the doctrine                                                                                                                        

                                                                    19     We concluded that the superior court's order requiring the  

of separation of powers."                                                                                                                                                                                                      



attorney general to prosecute a particular case of nonsupport "overstepped this line":  

                                                                                                                                                                                                                                          



"although  we  have  jurisdiction  to  entertain  this  case  and  to  find,  as  we  have,  the  

                                                                                                                                                                                                                              



existence of legal authority [for the attorney general to bring the nonsupport action], we  

                                                                                                                                                                                                                                



do not have power to control the exercise of the [a]ttorney [g]eneral's discretion as to  

                                                                                                                                                                                                                                  

whether he will take action in any particular cases of contempt for non-support."20  

                                                                                                                                                                                                                              



                                    We addressed a similar issue in  Vick v. Board of Electrical Examiners,  

                                                                                                                                                                                                        



where we considered the scope of appellate authority over a licensing board's decision  

                                                                                                                                                                                                                 



- based on the recommendation of an investigative division - not to commence a  

                                                                                                                                                                                                                                    

                                                                                21  We noted that "we will sometimes inquire into the basis  

license revocation proceeding.                                                                                                                                                                                             

                                                  



of an agency's decision to assure that it is in conformity with law and that it is not so  

                                                                                                                                                                                                                                 



                  18               Id.  



                  19               Id.  



                  20               Id.  at  951;  see  also  Ross  v.   U.S.  Attorney's  Office,  511  F.2d  524,  525  (9th  



Cir. 1975) (per curiam) (recognizing the "well-settled principle that mandamus does not                                                                                                                                        

                                         

lie to compel a United States District Attorney to perform a discretionary act");                                                                                                                                  State v.   

 Williams, 356 P.3d 804, 808 (Alaska App. 2015) ("The decision whether to actively                                                                                                                               

participate in                         the prosecution                             of any               given   case is discretionary                                               on   the part of the                      

executive branch." (citing                                            Public Defender                              , 534 P.2d at 950-51)).                                        



                  21                626 P.2d 90, 91-92 (Alaska 1981).  

                                                                                                                



                                                                                                              -10-                                                                                                        7206
  


----------------------- Page 11-----------------------

                                                                                                 22  

capricious or arbitrary as to offend due process,"                                                   but we also observed that "the extent                         



of judicial review of discretionary determinations of an agency must necessarily vary                                                                                 

                                                  23    That is, "[w]hen a matter falls within an area traditionally  

with the subject matter."                                                                                                                             



recognized as within an agency's discretionary power, courts are less inclined to intrude  

                                                                                                                                                                 

than when the agency has acted in a novel or questionable fashion."24                                                                         We explained:  

                                                                                                                                                       



                                        When  an  agency  functions  to  protect  the  public  in  

                                                                                                                                               

                           general,  as  contrasted  with  providing  a  forum  for  the  

                                                                                                                                            

                           determination  of  private  disputes,  the  agency  normally  

                                                                                                                                

                           exercises              its      discretion              in       deciding             whether              formal  

                                                                                                                                    

                           proceedings                  should           be       commenced.                        In      matters            of  

                                                                                                                                             

                           occupational licensure the decision to initiate proceedings for  

                                                                                                                                               

                           revocation or suspension is comparable to the function of a  

                                                                                                                                                  

                           public prosecutor in deciding whether to file a complaint.  

                                                                                                                                                      

                           Questions of law and fact, of policy, of practicality, and of  

                                                                                                                                                

                           the allocation of an agency's resources all come into play in  

                                                                                                                                                

                           making such a decision.  The weighing of these elements is  

                                                                                                                  

                           the very essence of what is meant when one speaks of an  

                                                                                                                                               

                           agency exercising its discretion.[25]  

                                                                       



Notwithstanding this discussion of the limits on appellate review, we considered under  

                                                                                                                                                                   



the abuse of discretion standard the appellant's claims in  Vick that the licensing board  

                                                                                                                                                                   



had failed to pursue certain relevant information; we concluded that "the board and the  

                                                                                                                                                                         



              22           Id.   at 93 (citing              K & L Distribs., Inc. v. Murkowski                                       , 486 P.2d 351, 358               



(Alaska 1971)).                   



              23           Id.  



              24           Id.  



              25           Id.  (footnote  omitted).  



                                                                                   -11-                                                                             7206
  


----------------------- Page 12-----------------------

division did consider the matters put before themand that no abuse of discretion has been                                              



                         26  

demonstrated."               



                      A few years later the United States Supreme Court held in Heckler v.  

                                                                                                                                           



Chaney that "an agency's decision not to prosecute or enforce, whether through civil or  

                                                                                                                                           

criminal process, is adecision generally committed to an agency's absolute discretion."27  

                                                                                                                                                



As we did in  Vick, the Court highlighted the "complicated balancing of a number of  

                                                                                                                                           

factors which are peculiarly within [the agency's] expertise."28   The Court also observed  

                                                                                                                                



"that when an agency refuses to act it generally does not exercise its coercive power over  

                                                                                                                                       



an individual's liberty or property rights, and thus does not infringe upon areas that  

                                                                                                                                        



courts often are called upon to protect"; whereas "when an agency does act to enforce,  

                                                                                                                                 



that action itself provides a focus for judicial review, inasmuch as the agency must have  

                                                                                                                                       

                                                                29   But the Heckler  Court noted that not every  

exercised its power in some manner."                                                                                                 

                                                 



enforcement  decision  by  an  executive  agency  is  by  definition  unreviewable:  the  

                                                                                                                                        



legislature could empower courts to review such decisions "either by setting substantive  

                                                                                                                            



priorities, or by otherwise circumscribing an agency's power to discriminate among  

                                                                                                                                   

issues or cases it will pursue."30  

                                    



           26         Id.  



           27         470  U.S.  821,  831  (1985)  (citing  cases).   



           28         Id.  



           29         Id.  at  832  (emphasis  in  original).  



           30         Id.  at  833;  see  also  Inmates  of  Attica  Corr.  Facility  v.  Rockefeller,  477  F.2d  



375, 380 (2d Cir. 1973) ("In the absence of statutorily defined standards governing  

                                                                                                                             

                 

reviewability, or regulatory or statutory policies of prosecution, the problems inherent  

                                                                                                                                           

in the task of supervising prosecutorial decisions do not lend themselves to resolution by  

       

the judiciary.").  



                                                                    -12-                                                              7206
  


----------------------- Page 13-----------------------

                                 As suggested in                           Heckler, we have reviewed agency decisions when the                                                                                 



 legislature has statutorily narrowed or eliminated the agency's enforcement discretion.                                                                                                                                 



 In  State, Department of Fish &Game, Sport Fish Division v. Meyer                                                                                                 , we reviewed a case-                 



 closing order of the Alaska State Commission for Human Rights, concluding that the                                                                                                                            



 agency's   compliance   with   the   Human   Rights   Act   did   not   "involve   the   exercise   of  

                                                                                 31        The  Commission's  case-closing  decisions  were  

prosecutorial   discretion   at   all."                                                                                                                                                                  



 reviewable because "the [Human Rights Act] grants no discretion to discontinue the  

                                                                                                                                                                                                               



process once the investigator finds substantial evidence of discrimination, unlike the  

                                                                                                                                                                                                               



                                                                                              32  

 statutes at issue in Vick and Heckler ." 

                                                                                                   



                 31               906 P.2d 1365, 1373-74 (Alaska 1995) (noting the compulsory language                               



 of the agency's statutory mandate and observing that "if the Commission wants its staff                                                                                                                    

 to have this discretionary authority, it must be obtained from the legislature, not the                                                                                                                       

judiciary"),  superseded by statute                                               , AS 18.80.112(b),                            as stated in Huit v. Ashwater Burns,                                   

Inc., 372 P.3d 904, 914 n.52 (Alaska 2016).                                                                    



                 32              See id. at 1373; see also Toliver v. Alaska State Comm'n for Human Rights,  

                                                                                                                                                                                                      

 279 P.3d 619,623-24 (Alaska 2012) (highlighting the mandatory language in the Human  

                                                                                                                                                                                                     

 Rights Act regarding the Commission's investigations).  We also review for abuse of  

                                                                                                                                                                                                                 

 discretion Bar Counsel's decision to close a grievance investigation or to not pursue a  

                                                                                                                                                                                        

 complaint. See McGee v. Alaska Bar Ass'n, 353 P.3d 350, 352, 354 (Alaska 2015) ("Bar  

                                                                                                                                                                                                         

 Counsel's decision to close McGee's grievance without a formal investigation was not  

                                                                                                                                                                                                               

 arbitrary or capricious, and we see no breakdown in the grievance process warranting  

                                                                                                                                                                                            

 interference with Bar Counsel's decision."); Anderson v. Alaska Bar Ass'n , 91 P.3d 271,  

                                                                                                                                                                                                            

 272 (Alaska 2004) ("[W]e conclude that Bar Counsel did not abuse his discretion in  

                                                                                                                                                                                                                 

 declining to accept the grievance for investigation.").  But attorney discipline cases are  

                                                                                                                                                                                                               

 much different from ordinary administrative appeals due to our inherent authority to  

                                                                                                                                                                                                                 

 regulate the practice of law; we review attorney discipline cases directly.  See McGee,  

                                                                                                                                                                                        

 353 P.3d  at 351 ("In Anderson v. Alaska Bar Ass'n we held that there was no right to  

                                                                                                                                                         

 appeal grievance-closing decisions to the superior court, but . . . we would directly  

                                                                                                                                                                                                   

 review such decisions."); Anderson , 91 P.3d at 272 ("[G]rievance-closing decisions  

                                                                                                                                                                                               

under Bar Rule 22(a) may, upon timely request of a complainant, be reviewed by this  

                                                                                                                                                                                                              

 court.").  

                       



                                                                                                       -13-                                                                                               7206
  


----------------------- Page 14-----------------------

                              Our review of these cases convinces us that we should not review the CDD                                                                               



                                                                                                                                                                                            33  

 Director's decision in this case.                                      First, unlike the Human Rights Act at issue in                                                       Meyer,  



the CBJ grants the CDD and its Director broad discretion in determining whether to take  

                                                                                                                                                                                       

                                                                                                                                     34      Thus even if we were  

 action regarding potential violations of the land use code.                                                                                                                         

                                                                                                                         



 convinced that the Director's interpretation of the plat notes was incorrect, we would not  

                                                                                                                                                                                          

be in a position to second-guess his discretionary exercise of enforcement authority;35  

                                                                                                                                                                       



whether to take action against the Gilbertos' fence would still depend on "[q]uestions of  

                                                                                                                                                                                            



 . . . policy, of practicality, and of the allocation of [the] agency's resources," and "[t]he  

                                                                                                                                                                                   



weighing of these elements is the very essence of what is meant when one speaks of an  

                                                                                                                                                                                           

 agency  exercising  its  discretion."36                                              Furthermore,  we  recognized  in  Vick that  this  

                                                                                                                                                                                       



               33             906 P.2d at 1372-74.       



               34             See CBJ  49.10.600(a) ("When the department finds . . . that a person is                                                   



 causing . . . a condition or activity which, in the judgment of the department, presents an  

                                                                                                                                                                                           

 imminent or present danger to the health, safety or welfare of the people . . . , and it                                                                                                    

 appears to be prejudicial . . . to delay action until an opportunity for a hearing can be                                                                                                 

provided, the department, without prior hearing,  may  order that person by notice to  

                                                                                                                                                                                           

 discontinue,   abate   or   alleviate   the   condition   or   activity."   (emphasis   added));   CBJ  

  49.10.620(a) ("When,                                 in the opinion of the department                                         , a person is violating . . . a                          

provision of this title, . . . the department                                               may  notify the person of its determination by                                                 

personal service, or certified mail." (emphasis added)).                                                                    



               35             See Falls Rd. Cmty. Ass'n v. Baltimore Cty., 85 A.3d 185, 201-02 (Md.  

                                                                                                                                                                   

 2014) (holding that County could not be required to pursue zoning enforcement action,  

                                                                                                                                                                                 

 due to its discretionary nature, and analogizing to the discretion "of a State's Attorney  

                                                                                                                                                        

who must decide which criminal cases to prosecute").  

                                                                                             



               36             Meyer, 906 P.2d at 1373 (quoting Vick v. Bd. of Elec. Exam'rs, 626 P.2d  

                                                                                                                                                                            

 90, 93 (Alaska 1981)); cf. Newman v. United States, 382 F.2d 479, 482 (D.C. Cir. 1967)  

                                                                                                                                                                                   

 (explaining that "while [prosecutorial] discretion is subject to abuse or misuse just as is  

                                                                                                                                                                                             

judicial discretion, deviations from [a prosecutor's] duty as an agent of the Executive are  

                                                                                                                                                                                          

to be dealt with by his superiors" and "no court has any jurisdiction to inquire into or  

                                                                                                                                                                                           

                                                                                                                                                                  (continued...)  



                                                                                            -14-                                                                                     7206
  


----------------------- Page 15-----------------------

enforcement discretion is due more judicial deference "[w]hen an agency functions to                                                                    



protect the public in general, as contrasted with providing a forum for the determination                                          

                                    37  such is the case here, as the CDD does not provide an adjudicative  

of private disputes";                                                                                                                 



forum.  And Yankee does not dispute that the Director's decision was "within an area  

                                                                                                                                                    



traditionally recognized as within [the CDD's] discretionary power," meaning that we  

                                                  



"are less inclined to intrude than when the agency has acted in a novel or questionable  

                                                                                                                                     

fashion."38  

                     



                        It is also significant that the Director's decision was not an exercise of  

                                                                                                                                                       



coercive power, but rather a decision to continue the status quo; as noted in Heckler v.  

                                                                                                                                                        



Cheney, the lack of an "action" gives the courts less of "a focus for judicial review,  

                                                                                                                                              

inasmuch as the agency must have exercised its power in some manner."39  Furthermore,  

                                                                                                                                    



we do not see, nor does Yankee argue, that the Director's decision was so arbitrary or  

capricious as to implicate due process concerns.40   And importantly, while the appellant  

                                                                                                                                           

in  Vick lacked another vehicle for relief outside of the administrative appeal process,41  

                                                                                                                             



Yankee has another option - a direct suit against the Gilbertos in superior court, in  

                                                                                                                                                        



            36(...continued)  



review  [a  prosecutor's]  decision");  James  Vorenberg,  Decent  Restraint  of  Prosecutorial  

Power,  94  HARV. L. REV. 1521,  1546  (1981)  ("Courts  often  justify  their  refusal  to  review  

prosecutorial  discretion  on  the  ground  that  separation-of-powers  concerns  prohibit  such  

review.").  



            37          626 P.2d at 93.  

                                              



            38          See id.  

                                



            39          470 U.S. 821, 832 (1985).  

                                                                         



            40          See  Vick, 626 P.2d at 93.  

                                                                       



            41          Id. at 92 (noting appellant's concession "that the final decision to revoke  

                                                                                                                          

or suspend a license lies within the discretion of the [Board of Electrical Examiners]").  

                                                                                                                                  

                     



                                                                          -15-                                                                    7206
  


----------------------- Page 16-----------------------

which he can litigate his standing to enforce the Montana Creek plat notes and whether                                                                                                                                             



                                                                                                                                                 42  

his interpretation of those notes is the correct one.                                                                                                    



                                       We  conclude,  therefore,  that  the  Director's  decision  in  this  case,  as  a  

                                                                                                                                                                                                                                                      



discretionary exercise of his enforcement authority, should not be subject to judicial  

                                                                                                                                                                                                                                    



review.  



V.                  CONCLUSION  



                                       We AFFIRM on other grounds the superior court's dismissal of Yankee's  

                                                                                                                                                                                                                               



appeal.  



                   42                  CBJ      49.15.440(4)   (March   2013)   (renumbered  with   slight   language  



changes in CBJ  49.15.415(b) ( June 2017)) ("Any such restrictive covenant may be                                                                                                                                                                  

enforced against the subdivider or any subsequent owner . . . by any specifically affected                                                                                                                                          

member of the public.").                    



                                                                                                                        -16-                                                                                                                7206
  

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