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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Creekside Limited Partnership, Creekside-Alyeska, LLC, and Community Development, Inc. v. Alaska Housing Finance Corporation (3/12/2021) sp-7509
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
CREEKSIDE LIMITED PARTNERSHIP; )
CREEKSIDE-ALYESKA, LLC; and ) Supreme Court No. S-17517
COMMUNITY DEVELOPMENT, INC., )
) Superior Court No. 3AN-18-06143 CI
Appellants, )
) O P I N I O N
v. )
) No. 7509 - March 12, 2021
ALASKA HOUSING FINANCE )
CORPORATION, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Thomas A. Matthews, Judge.
Appearances: Taylor B. McMahon, Law Offices of Royce &
Brain, Anchorage, for Appellants. Cynthia L. Cartledge and
Megan N. Sandone, Jermain, Dunnagan & Owens,
Anchorage, and Stefan A. Saldanha, Assistant Attorney
General, Anchorage, and Kevin G. Clarkson, Attorney
General, Juneau, for Appellee.
Before: Bolger, Chief Justice, Winfree, Maassen, and
Carney, Justices. [Borghesan, Justice, not participating.]
WINFREE, Justice.
I. INTRODUCTION
A project developer that had used state-allocated federal tax credits for a
low-income housing project sued the state housing authority, asserting an option to
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eliminate a contractual obligation to maintain the project as low-income housing for 15
years beyond the initial 15-year qualifying period. The superior court granted summary
judgment in favor of the housing authority, and the developer appeals several aspects of
the court's ruling. We conclude that the court correctly interpreted the relevant statutes
and contract documents and correctly determined there were no material disputed facts
about the formation of the parties' agreements. We therefore affirm the court's grant of
summary judgment in the housing authority's favor.
II. FACTS AND PROCEEDINGS
A. Facts
1. The low-income housing tax credit program
The federal government created a low-income housing tax credit (LIHTC)
1
program as part of the Tax Reform Act of 1986. The program incentivizes development
and rehabilitation of affordable rental housing by providing tax credits to developers of
2
qualified low-income housing projects.
3
Tax credit allocation involves both the federal and state governments. The
4
federal government allocates LIHTCs to states based on population. State housing
agencies then are responsible for allocating tax credits to low-income rental housing
1 Tax Reform Act of 1986, Pub. L. No. 99-514, § 252, 100 Stat. 2085, 2189-
2208 (codified as amended at I.R.C. § 42).
2 MARK P. KEIGHTLEY, CONG. RESEARCH SERV., RS22389, AN
INTRODUCTION TO THE LOW-INCOME HOUSING TAX CREDIT 1 (2019).
3 Id. at 2.
4 Id.
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5
developers under their state's qualified allocation plan, which must meet certain
6
requirements.
For example, all allocation plans must prioritize projects serving the
7
lowest-income tenants and remaining affordable for the longest periods.
The Internal Revenue Code establishes rules about the length of time a
8 The Code
project must maintain affordability requirements to receive tax credits.
provides that developers must make "an extended low-income housing commitment" to
receive credits, requiring the project to maintain affordability for an "extended use
period."9 The extended use period lasts 15 years beyond the initial 15-year compliance
period, for a total of 30 years, unless otherwise specified by the state agency's
agreement.10
TheCodeprovides two possibilities forending theaffordabilityrestrictions
11 First, the extended use period may end
prior to the extended use period's end.
prematurely if the project is acquired from the developer by foreclosure (or instrument
5 Id. ; see I.R.C. § 42(m)(1)(B) (defining qualified allocation plan).
6 See I.R.C. § 42(m)(1)(C) (setting out required selection criteria).
7 I.R.C. § 42(m)(1)(B)(ii)(I)-(II); KEIGHTLEY, supra note 2, at 2.
8 I.R.C. § 42(h)(6).
9 Id.
10 See I.R.C. § 42(i)(1) (stating "compliance period" is "the period of 15
taxable years beginning with the [first] taxable year of the credit period with respect
thereto"); I.R.C. § 42(h)(6)(D) (defining "extended use period" as period that "begin[s]
on the [first] day in the compliance period on which [the] building is part of a qualified
low-income housing project" and ends on "the date which is 15 years after the close of
the compliance period" or "the date specified by [the] agency in [the] agreement,"
whichever is later).
11 I.R.C. § 42(h)(6)(E).
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in lieu of foreclosure). 12 Second, the extended use period may end prematurely under
13
what is known as the "qualified contract" option.
Under this option a developer may
remove the project from the program if, after the initial 15-year compliance period, the
state housing agency cannot find a buyer for the project that will continue operating it
14 But a state may exclude the qualified contract option; the Code
as low-income housing.
provides that the qualified contract option "shall not apply to the extent more stringent
requirements are provided in the agreement or in State law."15
2. Alaska Housing Finance Corporation's allocation plan
Alaska Housing Finance Corporation (AHFC) is a public corporation 16
17
responsible for administering Alaska's LIHTC program. AHFC's Greater
Opportunities for Affordable Living Program Rating and Award Criteria Plan (GOAL
18 In August 1999 AHFC announced its
program) serves as the agency's allocation plan.
GOAL program for fiscal year 2000. The program sought "to encourage the responsible
development of housing for lower-income persons and families through the allocation
12 I.R.C. § 42(h)(6)(E)(i)(I).
13 See I.R.C. § 42(h)(6)(E)(i)(II).
14 Id.
15 Id.
16 AS 18.56.020; see also Anderson v. Alaska Hous. Fin. Corp., 462 P.3d 19,
26-27 (Alaska 2020) (describing AHFC as legislatively created state actor "wholly
controlled by the State through its appointees" to further goal of "address[ing] the
shortage of residential housing available to low- and middle-income Alaskans").
17 Low Income Housing Tax Credit, ALASKA HOUS. FIN. CORP.,
https://www.ahfc.us/pros/homelessness/development-grants/low-income-housing-tax-
credit (last visited Dec. 2, 2020).
18 See id.
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of GOAL program funds." AHFC stated that it would use the GOAL program criteria
to distribute the program funds, including tax credits. The GOAL program established
how AHFC would score applications. The second criterion, titled "Extended Low-
Income Project Use," stated: "Six (6) Points will be awarded to applications that commit
the project to an extended low-income use equaling 30 years. An extended use
agreement . . . is required."
3. The Creekside project
Creekside Limited Partnership initially consisted of general partner Alpine
Partners, Ltd., a for-profit developer, and limited partner Anchorage Mutual Housing
19
Association (AMHA), a non-profit organization.
Creekside applied for tax credits
under the 2000 GOAL program in October 1999. Creekside proposed to construct a 30-
unit, low-income housing project in Girdwood. Creekside awarded itself six additional
qualifying points in its application for "Extended Low Income project use," stating the
project would "maintain affordability for a 30 year period."
AHFC sent a December 1999 notice of intent to award tax credits to
Creekside for its project. AHFC indicated it would send Creekside a "reservation
agreement" that, along with other documents, would "outline specific project
requirements in accordance with representations made . . . in [Creekside's] application,
as well as federal and/or state programmatic requirements which may be applicable."
Creekside's representative signed the acceptance letter attached to the award letter.
19 Alpine developed the property and AMHA was to manage it. AMHA later
left the project; Community Development, Inc. (CDI) joined as a limited partner and later
became general partner. CDI is a non-profit corporation involved in development,
management, and ownership of low-income housing projects in Alaska and other states.
When CDI became involved in the project in 2001, it formed Creekside-Alyeska, LLC.
Creeksidenowconsists ofgeneral partner Creekside-Alyeska, LLC, owned in its entirety
by CDI.
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AHFCsubsequentlysentCreeksidethe2000 LIHTCreservationagreement,
which provided: "The owner agrees to maintain all project characteristics certified to in
the tax credit application for 30 years. These characteristics will be included in the
restrictive covenant which is required for this property." One of these "characteristics"
was that "100% of the residential rental units are reserved for families at or below 60%
of the median income." Creekside's representative signed the reservation agreement.
Creekside entered into a land use restrictive agreement with AHFC in
20 Creekside agreed to "lease one hundred percent (100%) of the
December 2001.
residential rental units in the [c]omplex to individuals or families whose income is sixty
(60) percent or less of area median gross income"; it also agreed to do so for 30 years,
beginning when the apartment complex became a qualified low-income housing project.
Notwithstanding this 30-yearrequirement,theagreement provided that"theextendeduse
period for any building which is part of the [project] shall terminate: [o]n the date the
building is acquired by foreclosure or instrument in lieu of foreclosure."
4. Creekside's attempt to terminate affordability restrictions
In January 2018 Creekside requested to exercise the qualified contract
option described in the Internal Revenue Code to terminate the project's affordability
restrictions.21 AHFC denied this request on the ground that Creekside had committed to
maintaining the affordability restriction for the full 30 years without a qualified contract
option.
B. Proceedings
Creekside sued AHFC in April 2018, seeking declaratory judgment that
20 See I.R.C. § 42(h)(6)(B)(vi) (requiring agreement for tax credits to be
recorded as restrictive covenant).
21 See I.R.C. § 42(h)(6)(E)(i)(II).
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Creekside had "not waived [its] right to exercise the qualified contract option." The
22
parties filed cross-motions for summary judgment.
Creekside argued that it could
exercise the qualified contract option because it had never waived the right to do so.
Creekside stated that it believed it was merely complying with federal law when it
claimed the six points for a 30-year extended project life in its application and asserted
that AHFC did not communicate to applicants that claiming the six points "would be
construed as a waiver." AHFC responded that Creekside chose to accept Alaska's "more
stringent requirements" by claiming the six points on its application and that the land use
restrictive agreement reflected this aspect of the project agreement.
The superior court held oral argument on the motions in March 2019. Later
in March the court issued an order granting AHFC's summary judgment motion and
denying Creekside's summary judgment motion. The court later denied Creekside's
reconsideration motion.
Creeksidenowappeals both thesuperior court's grant ofAHFC's summary
judgment motion and denial of Creekside's reconsideration motion.
III. STANDARD OF REVIEW
23 We will affirm "if
"We review grants of summary judgment de novo."
the record presents no genuine issue of material fact and if the movant is entitled to
22 See Alaska R. Civ. P. 56(c) (stating summary judgment is proper if "there
is no genuine issue as to any material fact and that any party is entitled to a judgment as
a matter of law"); see also James v. Alaska Frontier Constructors, Inc., 468 P.3d 711,
717 (Alaska 2020) ("Summary judgment is proper only when undisputed material facts
lead to the conclusion that a party is entitled to judgment as a matter of law.").
23 Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 516 (Alaska 2014).
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judgment as a matter of law." 24
"Questions of contract interpretation are generally questions of law which
25 But factual questions exist "when the meaning of contract
[are] reviewed de novo."
26 Finally, "[t]he question of the
language depends on conflicting extrinsic evidence."
meaning of a written contract, including a review of the extrinsic evidence to determine
whether any of the extrinsic evidence is conflicting, is a legal question which we review
de novo."27
"We review the denial of a motion for reconsideration for abuse of
discretion."28 An "[a]buse of discretion will be found 'when the decision on review is
manifestly unreasonable.' "29
IV. DISCUSSION
A. The Qualified Contract Option Is Not Available To Creekside.
As discussedabove, under federal lawtherearetwo ways a developer using
tax credits for a low-income housing project can end affordability restrictions prior to 30
24 Hagen v. Strobel, 353 P.3d 799, 802 (Alaska 2015) (quoting Kelly v.
Municipality of Anchorage , 270 P.3d 801, 803 (Alaska 2012)).
25 Estate of Polushkin ex rel. Polushkin v. Maw, 170 P.3d 162, 167 (Alaska
2007).
26 Id.
27 Id.
28 Szabo v. Municipality of Anchorage , 320 P.3d 809, 813 (Alaska 2014).
29 Harper v. BioLife Energy Sys., Inc., 426 P.3d 1067, 1071 (Alaska 2018)
(quoting Timothy W. v. Julia M., 403 P.3d 1095, 1100 (Alaska 2017)); see Sharpe v.
Sharpe, 366 P.3d 66, 68 (Alaska 2016) ("A superior court abuses its discretion by
making a decision that is arbitrary, capricious, manifestly unreasonable, or . . . stem[s]
from an improper motive." (alterations in original) (quoting Morris v. Horn, 219 P.3d
198, 203-04 (Alaska 2009))).
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30
years: (1) foreclosure of the project property, or (2) the qualified contract option. The
qualified contract option does "not apply to the extent more stringent requirements are
provided in the agreement or in State law," but there is no such exception for
foreclosure.31
Whengrantingsummary judgment for AHFC,thesuperior courtconcluded
that Creekside had "agreed to an affordability requirement that is more stringent than the
federal baseline." Applying basic contract principles, the superior court determined that
the written documents clearly showed Creekside took the 6 extra qualifying points in
exchange for maintaining affordability for 30 years. Looking within the four corners of
the project's land use restrictive agreement that created the affordability covenant, the
court concludedthat theagreement's "silenceon the[q]ualified[c]ontract[o]ption shows
that the [q]ualified [c]ontract [o]ption [was] not available." The court explained that
Creekside produced no "admissible evidenceofambiguity,"noting that it had not refuted
the contract documents' "plain language" and would be unable to provide any evidence
doing so because its "contrary reading would mean [it] got something for nothing." The
court thus determined that AHFC was entitled to judgment as a matter of law and granted
summary judgment for AHFC.
Creeksideasserts that thesuperior court improperly concludedthequalified
contract option was unavailable to Creekside. Creekside raises a number of
arguments: (1) the allocation plan language was ambiguous and Creekside believed it
was merely agreeing to federal requirements by claiming the six extra points on its
application; (2) the land use restrictive agreement does not govern because it was entered
into after construction had begun; (3) the land use restrictive agreement was an improper
30 I.R.C. § 42(h)(6)(E)(i).
31 Id.
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modification of the earlier contract documents; (4) the land use restrictive agreement
mentioning foreclosure but not the qualified contract option did not mean that the
qualified contract option was unavailable; (5) an unpublished New Jersey decision
suggested a different result; and (6) the court should have applied waiver law principles.
We agree with the superior court's conclusion that the allocation plan
language was not ambiguous and that it is unreasonable for Creekside to believe it was
awarded the 6 additional points merely for agreeing to federal requirements and not for
agreeing with AHFC's 30-year affordability commitment. The agreement between
Creekside and AHFC involved a number of documents: the 1999 application, the notice
of intent to award, the reservation form, and the land use restrictive agreement. The
following undisputed facts are relevant to this dispute: (1) in Creekside's 1999
application it claimed 6 qualifying points for agreeing that the "[p]roject will maintain
affordability for a 30 year period"; (2) Creekside signed the notice of intent to award in
1999, agreeing to later sign a reservation agreement; (3) the reservation form Creekside
signed in 2000 required it to "maintain all project characteristics certified to in the tax
credit application for 30 years,"including theaffordability requirements for all units; and
(4) the land use restrictive agreement Creekside signed in 2001 created a covenant
running with the land, which required it to maintain affordability on all units for 30 years
and mentioned early termination only if there were a "foreclosure or instrument in lieu
of foreclosure." This clearly demonstrates that Creekside committed to maintaining
project affordability for 30 years; Creekside's 30-year affordability commitment to
AHFC was more stringent than federal law requires but nonetheless authorized by
federal law.
B. Summary Judgment For AHFC Was Proper.
Creekside argues that summary judgment for AHFCwas improper because
there were disputed issues of material fact. Creekside contends that it "did not intend to
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waive the [q]ualified [c]ontract right or agree to more stringent requirements," pointing
to a representative's affidavit as support. Creekside also points to other evidence it says
demonstrates its actual intent, including that in 2017 it "initiated the [q]ualified [c]ontract
process by engaging consultants, reviewing the property documents, and setting up a
conference call with AHFC."
This argument is unconvincing. Summary judgment is not proper when the
32
non-moving party shows "that a genuine issue of material fact exists to be litigated."
"But . . . the offered evidence must not be too conclusory, too speculative, or too
incredible to be believed, and it must directly contradict the moving party's evidence."33
The representative's affidavit is conclusory; Creekside cannot survive summary
judgment on a contract issue merely by now stating that its prior subjective intent was
34 And evidence of Creekside's actions in
not to give up the qualified contract option.
2017 - namely that it tried to assert the qualified contract option - does not address
the reasonable expectations of the parties when they entered into the contract over 15
years earlier. Creekside simply has no admissible evidence of a contemporaneous
subjective intent contrary to the project documents. Because there was no genuine
32 Christensen v. Alaska Sales &Serv., Inc. , 335 P.3d 514, 519 (Alaska 2014)
(quoting Lockwood v. Geico Gen. Ins. Co. , 323 P.3d 691, 696 (Alaska 2014)).
33 Id. at 516.
34 See Peterson v. Wirum, 625 P.2d 866, 870 (Alaska 1981) ("Differences of
opinion among the parties as to their subjective intent, expressed during the litigation,
do not establish an issue of fact regarding the parties' reasonable expectations at the time
they entered into the contract, since such self-serving statements are not considered to
be probative."); cf. AAA Valley Gravel, Inc. v. Totaro, 219 P.3d 153, 169-70 (Alaska
2009)- ("[U]nambiguous contract language is not rendered ambiguous simply because
the parties disagree on their intent at the time of contracting, [or] because they advance
different interpretations during the course of litigation . . . .").
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dispute of material fact, the superior court properly granted summary judgment for
AHFC.
Creekside's other appeal arguments compel no different result. The fact
that the land use restrictive agreement was executed later in time than the other
documents does not make it irrelevant, nor did it constitute an improper modification of
the earlier documents. Creekside knew when it applied for the project that, based on
35 And the notice of
federal law, it would have to sign a land use restrictive agreement.
intent letter mentioned the reservation form, which in turn mentioned the land use
restrictive agreement. The land use restrictive agreement did not modify earlier
agreements; consistent with Creekside's claim of the six points for an extended project
term, it provided foreclosure as the only early termination option.
The unpublished New Jersey decision Creekside points to is not analogous.
In that case New Jersey tried to prevent a developer from terminating the affordability
requirements early due to foreclosure; the trial court determined, and the appellate court
36 That differs from this
affirmed, that New Jersey could not do so under federal law.
case: federal law allows states to apply more stringent requirements to eliminate the
qualified contract option, but federal law does not allow states to restrict a developer's
ability to terminate affordability restrictions upon foreclosure.37
Unlike the New Jersey case Creekside points to, a recent Hawaii federal
district court decision is directly relevant, and it supports the superior court's ruling. In
35 See I.R.C. § 42(h)(6)(B)(vi) (requiring agreement for tax credits to be
recorded as restrictive covenant).
36 Mfrs. & Traders Trust Co. v. Marina Bay Towers Urban Renewal II, LP,
No. A-5879-17T2, 2019 WL 5395937, at *12, *15-16 (N.J. Super. App. Div. Oct. 22,
2019) (per curiam).
37 See I.R.C. § 42(h)(6)(E)(i).
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Tuttle v. Front Street Affordable Housing Partners the developer of an affordable
housing complex applied for, and the state housing authority granted, an early release
38 Like Creekside, the Tuttle developer had utilized
from the affordability commitment.
tax credits under the state's LIHTC program and agreed to a restrictive covenant on the
property.39 The covenant included a 51-year affordability period in exchange for
receiving the tax credits.40 After receiving notice that LIHTC restrictions nonetheless
would be lifted, and in anticipation that rents subsequently would increase to market
rates, residents sued the developer and the state housing authority for breach of the
restrictive covenant.41 Applying Hawaii law, the federal district court held that the
qualified contract exception was unavailable and thus the developer's early release from
the covenant was void; it concluded the covenant requiring affordability for the full 51-
42 The court determined, using contract interpretation rules,
year term must be reinstated.
that the "expressed intent [in a restrictive covenant] is controlling and unexpressed intent
43 The superior court in this case likewise applied contract rules
is generally unavailing."
and found that the qualified contract option was unavailable based on the developer's
agreement to more stringent affordability requirements than the federal baseline.
Finally, Creeksideasserts thatthesuperiorcourtshouldhaveapplied waiver
law principles in deciding the summary judgment motion. "Waiver is generally defined
38 478 F. Supp. 3d 1030, 1034 (D. Haw. 2020).
39 Id. at 1036-37.
40 Id.
41 Id. at 1038.
42 Id. at 1034, 1039-43, 1049.
43 Id. at 1040 (emphasis omitted).
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44
as 'the intentional relinquishment of a known right.' " Waiver "can be accomplished
by an express statement or by conduct that is 'inconsistent with any other intention than
a waiver, or where neglect to insist upon the right results in prejudice to another
45 Proving implied waiver of a legal right requires "direct, unequivocal conduct
party.' "
indicating a purpose to abandon or waive the legal right, or acts amounting to an estoppel
by the party whose conduct is to be construed as a waiver."46 The superior court
concluded that waiver theory did not apply.
Creekside made no viable evidentiary showing that it had a right to exercise
the qualified contract option, and the Code's explicit statement that states may eliminate
the qualified contract option with more stringent requirements indicates that Creekside
did not have such a right. Further, for the reasons described above, Creekside's actions
were consistent with an intent to commit to maintaining affordability requirements for
30 years without the possibility of early termination through the qualified contract
option. The Code does not create a right to a qualified contract option that a developer
"waives." The Code allows states to eliminate the qualified contract option. The
superior court correctly concluded that Creekside applied for and received tax credits in
exchange for executing relevant contract documents for a low-income housing project
with an extended 30-year life and no qualified contract option.
44 Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978) (quoting Arctic
Contractors, Inc. v. State , 564 P.2d 30, 40 (Alaska 1977)).
45 Powercorp Alaska, LLC v. Alaska Energy Auth., 290 P.3d 1173, 1185
(Alaska 2012) (quoting Carr-Gottstein Foods Co. v. Wasilla, LLC, 182 P.3d 1131, 1136
(Alaska 2008)).
46 Milne, 576 P.2d at 112.
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C. The Superior Court Did Not Abuse Its Discretion By Denying
Creekside's Motion For Reconsideration .
Creekside contends that the superior court erred by rejecting Creekside's
47 "Under Alaska Civil Rule 77(k)(1)(ii), a party may ask the
motion for reconsideration.
court to reconsider a ruling previously decided if, in reaching its decision, the court has
overlooked or misconceived some material fact or proposition of law."48
Creekside
asserted three main arguments for reconsideration. First, Creekside argued that it never
intended to waive the qualified contract option and there thus was a genuine dispute of
material fact regarding the parties' intent. The court dismissed this argument as
"conclusory" and "speculative." Second, Creekside argued that its claimand acceptance
of the six qualifying points for an extended project life was merely a statement of
compliance with federal law and that there was a material factual dispute regarding the
significance of the six additional points in the application. Again, the court dismissed
Creekside's argument as "speculative and unsubstantiated" based on the
contemporaneous project development record. Third, Creekside argued that "the legal
issue should be considered in the context of waiver," claiming the documents AHFC
produced in discovery showed AHFC intended the applicants to waive the right to the
qualified contract option, as opposed to AHFC's later assertion that the six points were
an "incentive." The court explained it had not overlooked or failed to consider waiver
principles in its decision but instead "(1) considered and rejected their applicability, and
(2) determined that principles of contract law controlled."
47 The correct standard of review is abuse of discretion. See Szabo v.
Municipality of Anchorage , 320 P.3d 809, 813 (Alaska 2014).
48 Alaskan Adventure Tours, Inc. v. City &Borough of Yakutat , 307 P.3d 955,
963 n.23 (Alaska 2013).
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Thesuperior court clearlyexplained howit had not overlooked Creekside's
evidence or legal arguments but instead considered and rejected them. Because the court
adequately considered all of Creekside's factual and legal arguments and properly
granted summary judgment for AHFC, the court did not abuse its discretion by denying
Creekside's motion for reconsideration. 49
V. CONCLUSION
We AFFIRM the superior court's rulings and judgment.
49 Cf. Szabo, 320 P.3d at 816 (upholding denial of reconsideration motion
after court "adequately considered" movant's arguments).
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