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Hillstrand v. City of Homer

Supreme Court of Alaska

October 30, 2009

Nancy J. HILLSTRAND, Appellant,
CITY OF HOMER, Appellee.

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[Copyrighted Material Omitted]

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Ronald L. Baird, Anchorage, for Appellant.

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

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

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WINFREE, Justice.


A municipality sought land through eminent domain to expand its water treatment plant. The property owner objected to the taking because: it would close off an access route to her remaining property; the municipality had not dedicated replacement access in a binding way; and the municipality sought a fee simple interest, rather than an easement, in the portion of the land to be used as an undeveloped protective buffer for the plant. The landowner also sought an order directing the municipality to obtain final plat approval for the property by a specific date. The superior court granted the municipality's requested taking without specifying a deadline for the final plat. Because the superior court did not err in rejecting some of the landowner's objections as a matter of law and correctly left the remaining objections for consideration during the damages phase of the proceedings, we affirm the superior court's decision in all respects.


A. Facts

In 2005 the City of Homer determined it needed to expand its water treatment plant to meet federal drinking water standards and to increase capacity for future needs. The City wanted to construct a new building to house treatment-related facilities adjacent to its existing plant. Nancy Hillstrand owned in excess of one hundred acres in an adjoining parcel. The City sought to take roughly four acres of land in the southwest corner of Hillstrand's parcel.

The City planned to use the four-acre parcel for " the construction of a new building which will house required water treatment equipment, chemical storage, laboratory, and office space; access improvements; septic system; water treatment sludge dewatering facility; storm water treatment facilities; fencing; and adjustments to the raw water pipeline from the ... Reservoir." The City also planned to create " vegetative non-disturbance buffers" on that parcel as a shield between the new facilities and Hillstrand's remaining property.

The western boundary of Hillstrand's property and the eastern boundary of the City's existing water treatment plant is a section-line, with adjoining thirty-three foot wide section-line easements on each property. A section-line easement is a statutorily-created public right-of-way owned by the State of Alaska.[1] The section-line easement on Hillstrand's property contains a road-way known as Carter Drive, providing access from Hillstrand's parcel to a City road called Skyline Drive. Skyline Drive crosses Hillstrand's property at its southeastern corner, but the majority of the parcel cannot be reached from this point due to topographic features. Hillstrand's property also abuts certain public rights-of-way along its southern edge.

A fence surrounding the City's existing water treatment facility extends to the section-line, blocking the section-line easement on the City's property. The City would like to completely fence the section-line easement when it acquires Hillstrand's four-acre parcel, cutting off Carter Drive and access to Skyline Drive from the western portion of Hillstrand's remaining property. The City planned to dedicate a replacement right-of-way, known as Nancy Place, running from Skyline Drive through another City-owned parcel to the southern edge of Hillstrand's remaining property.

B. Proceedings

In December 2006 the City began negotiating with Hillstrand to acquire the parcel. The City later received preliminary approval from the City Planning Commission to acquire the parcel. The City placed a preliminary replat for the proposed taking on the Kenai Peninsula Borough Plat Committee's

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agenda for September 2007, but Hillstrand requested it be removed. The City complied.

In January 2008 the City filed a complaint for condemnation, a declaration of taking, and the decisional document describing the need for the project and the chosen site. The City sought a fee simple interest in 4.014 acres of Hillstrand's property, described in the complaint by metes and bounds, and deposited $62,000 with the superior court as its estimate of just compensation for the taking.

Hillstrand filed her answer and a motion to dismiss the taking in March 2008. She asserted that the City had not complied with the platting requirements of AS 09.55.275 and thus details of replacement access to her remaining parcel had not yet been legally determined. She also asserted that both the City's plan eliminating access through Carter Drive (along the section-line easement) and its taking of a fee simple interest in the land to be used as a vegetative buffer were unnecessary and therefore impermissible. She requested that the City's action be dismissed or " remanded to the City for compliance with AS 09.55.275" and that she be awarded costs and attorney's fees.

In April 2008 the City submitted a revised preliminary replat to the Borough Plat Committee and requested an exception to the Borough's requirement that Carter Drive continue to be dedicated as a public right-of-way.[2] The Committee approved the preliminary replat on May 12, 2008, but rejected the City's request to eliminate Carter Drive.

The superior court heard oral argument on Hillstrand's motion to dismiss on May 23, 2008. At that time Hillstrand also sought a ruling that the City did not have authority to close off the section-line easement (Carter Drive). The City asserted that it was not taking the section-line easement and had not taken action to vacate it. The City conceded that if the Borough allowed it to close Carter Drive as a public right-of-way the City would do so, but stated that it did not seek a court ruling on the matter. The court ordered the take deed be amended to describe the taken parcel by reference to the approved preliminary plat rather than by metes and bounds, but otherwise denied Hillstrand's motion to dismiss. The court found that the City had authority and necessity for the taking and granted the City possession of the parcel.

Hillstrand moved for reconsideration, which the court denied without comment. The court then denied Hillstrand's request for costs and attorney's fees.

Hillstrand appeals.


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