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Luper v. City of Wasilla

Supreme Court of Alaska

September 11, 2009

Deborah A. LUPER, Appellant,
v.
CITY OF WASILLA, Appellee.

Page 343

[Copyrighted Material Omitted]

Page 344

Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., Anchorage, for Appellant.

Thomas F. Klinkner, Birch, Horton, Bittner and Cherot, Anchorage, for Appellee.

Before : FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN, Justices.

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Deborah Luper raises dogs on property she owns in the City of Wasilla. City ordinances applicable to her property prohibited keeping more than three dogs without a permit. When the city sued Luper to enforce its ordinance, she applied for a use permit for an eighteen-dog kennel. The city denied her permit application and she appealed. After consolidating her permit appeal with the city's enforcement action, the superior court denied her appeal and granted the city summary judgment in its enforcement action. We affirm. Because substantial evidence supported the Wasilla City Planning Commission's factual findings and because the commission had a reasonable basis for interpreting its ordinance as it did, it permissibly denied Luper's permit application. Because the city disproved Luper's affirmative defenses and was otherwise entitled to summary judgment, the superior court did not err in granting summary judgment to the city in the enforcement action. Finally, the city's former three-dog " Rural Residential" limit was not unconstitutional as applied to Luper.

II. FACTS AND PROCEEDINGS

Wasilla Municipal Code (WMC) 16.12.010 and 16.20.010-.020 are zoning ordinances that require a property owner to obtain a use permit Before operating a dog " kennel" in a " Rural Residential" zoning district in the City of Wasilla.[1] An ordinance in effect at times relevant to this case defined " kennel" as " a use or lot in which more than three dogs, over four months of age, are kept." [2]

Page 345

Wasilla Municipal Code 16.16.050(A) states that a use permit " may be granted" if the applicant proves that the proposed use meets all general criteria enumerated in WMC 16.16.050 and any applicable specific criteria enumerated in WMC 16.16.060(J).

Deborah Luper owns an approximately one-acre parcel of " Rural Residential" Wasilla property, on which she operates a shetland sheepdog (sheltie) kennel with approximately eighteen dogs over four months of age. She describes the operation as a " hobby kennel." Luper applied for a use permit in May 2005; the commission denied her application. On May 8, 2006, the city filed suit in the superior court to enjoin Luper from maintaining the kennel without a use permit. Luper applied again for a use permit the same day. The Wasilla City Planning Commission held a hearing on her permit application and denied her application in June 2006. Luper appealed. On appeal the hearing officer considered the totality of evidence and the record, including evidence presented to the hearing officer, and ...


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