Richard KRAUSE and B. Jean Krause, Appellants,
MATANUSKA-SUSITNA BOROUGH, Carol Christiansen, Norma Christiansen, Ted Perdue, Jeanette Perdue, Curt Christiansen, and Monique Christiansen, Appellees.
[Copyrighted Material Omitted]
Joe P. Josephson, Josephson & Associates, P.C., Anchorage, for Appellants.
Nicholas Spiropoulos, Palmer, for Appellee Matanuska-Susitna Borough.
Patricia R. Hefferan, Wasilla, for Appellees Carol Christiansen, Norma Christiansen, Ted Perdue, Jeanette Perdue, Curt Christiansen, and Monique Christiansen.
Before: FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN, Justices.
Property owners in the Matanuska-Susitna Borough obtained preliminary approval for a plat after agreeing to certain conditions regarding easements and rights-of-way. They submitted a final version of the plat that did not conform to those conditions, but the Borough Platting Board accepted it for recording. Other owners of property in the same subdivision complained to Borough officials, appealed to the Borough Board of Adjustments and Appeals, and ultimately filed a separate suit in superior court making constitutional and statute-based claims against the Borough and the landowners who submitted the plat. The superior court ruled that the constitutional claims were improper and that the remaining claims were time-barred. We affirm dismissal of the constitutional claims for damages, but we reverse dismissal of the constitutional claims for declaratory relief and the statute-based claims. We remand for further proceedings.
II. FACTS AND PROCEEDINGS
Richard and B. Jean Krause own real property in the Finger Cove Estates subdivision of the Matanuska-Susitna Borough. The individually named defendants also own property in the subdivision. According to
the Krauses, in late 2000 Carol and Norma Christiansen applied to vacate a platted street and connecting utility and vehicle access easement. The Krauses objected to the application to vacate and presented their position at a public hearing before the Mat-Su Platting Board on December 7, 2000. At the conclusion of the hearing, the Platting Board approved the platting changes requested by the Christiansens, drafted a preliminary plat to reflect this approval, and imposed several conditions regarding easements and rights-of-way to appease the Krauses' concerns. Accordingly, the Krauses withdrew their objection. The Christiansens submitted a final version of the plat that did not satisfy the Platting Board's conditions. It appears that the Krauses received notice on November 13, 2002 that the plat would be accepted for recording, but the final plat was not recorded until November 26, 2002. The differences in the easements and rights-of-way in the final plat made " egress from and ingress to the [Krauses'] residence difficult and dangerous."
The Krauses allege that they discovered on December 10 or 11, 2002 that the plat had been recorded. They met with the Borough Manager and Acting Planning Director to explain their grievances on December 18 and continued to communicate with " various members of Mat-Su Borough government" regarding their objections to the plat throughout February 2003. On March 3, 2003, they received a letter from the Borough Manager stating that review of the platting action was closed. The Krauses requested reconsideration of that conclusion from the Manager ten days later and, after receiving no response, appealed to the Borough Board of Adjustment and Appeals (BOAA) on March 24, 2003. On April 1, 2005, the BOAA ruled that the Borough Manager's letter was not a decision from which it could properly hear an appeal. The BOAA therefore dismissed the Krauses' case. The Krauses then appealed that dismissal order in the superior court. Superior Court Judge Beverly Cutler affirmed on March 12, 2007, ruling that only the BOAA, not the Borough Manager, had authority to hear appeals of platting decisions. The Krauses did not appeal Judge Cutler's ruling.
On April 25, 2007, the Krauses filed a separate complaint in the superior court, alleging some of the facts recited above  and naming as defendants the Matanuska-Susitna Borough (the Borough), Carol and Norma Christiansen (the Christiansens), Ted Perdue, Jeanette Perdue, Curt Christiansen, and Monique Christiansen (the individual defendants). The Krauses asserted that they were " entitled to institute this action" by AS 29.40.190, and they made three claims for relief. First, the Krauses claimed that the actions of the Christiansens and the Borough " violated [Matanuska-Susitna Borough Ordinance (MSB) ] 16.10.060(F), which requires that all conditions of approval be met before a final plat is submitted for recording, and MSB 16.15.051(A), which requires that a final plat be submitted in conformance with the preliminary plat as approved."  Second, the Krauses claimed that " [b]y its singular treatment" of the Krauses and the Christiansens,
the Borough deprived the Krauses of their right to equal protection. Third, the Krauses claimed that the Borough violated their right to due process by (1) not requiring the Christiansens to request, and thus participate in, a hearing regarding their " proposed material changes to the approved preliminary plat" ; (2) not requiring the Christiansens to submit and have a hearing regarding " a new petition for a preliminary plat" ; (3) " depriving the plaintiffs of their legitimate interests in property as well as of their use of a platted subdivision street and related public use easement which were improperly vacated and transferred to private ownership." The Krauses sought declaratory judgment that the final plat was " not lawfully approved or adopted," was " at variance with the preliminary plat," and " is void and without force or effect." They also sought compensatory damages from the Borough and compensatory damages and statutory penalties from the Christiansens. The Krauses requested " entry of a permanent order and decree" restoring the status quo as it existed before the Christiansens modified the plat and directing the defendants not to interfere with the Krauses' use and enjoyment of their easements and rights-of-way.
On July 5, 2007, the Borough filed a motion to dismiss under Alaska Civil Rule 12(b)(6). The Borough argued that the Krauses' constitutional claims lacked merit because " [t]he Alaska Supreme Court has never recognized a direct constitutional cause of action against a municipality." Citing Lowell v. Hayes,  the Borough argued that this dispute did not merit the creation of such a cause of action because the Krauses had an alternative statutory remedy under which they also requested relief. And the Borough argued that " the statutory limitation imposed by the Alaska Legislature for this entire action has run" because the applicable statute of limitations for the AS 29.40.190 claim, set by AS 09.10.070, is two years. The Borough observed that because the Krauses' complaint alleged that the final plat made it dangerous to enter and exit their residence and included no allegations that the danger was generated by anything other than the recording of the plat in November 2002, the cause of action accrued more than two years before the complaint was filed.
The Krauses opposed the motion to dismiss. They argued that the approval of the final plat is a " continuing violation" under AS 29.40.190(b), so the two-year limitation period in AS 09.10.070 did not bar their claims. Second, they argued that because their claims involve real property, other statutes of limitations-ten years under AS 09.10.030 or AS 09.10.100, or six years under AS 09.10.050-apply. Regarding the constitutional claims, the Krauses argued that this court had " neither adopted nor rejected" the doctrine the United States Supreme Court created in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,  which permits, under some circumstances, rights of action for damages arising from constitutional violations by government agents.
Superior Court Judge Vanessa White dismissed the Krauses' suit. The court first disposed of the Krauses' equal protection and due process claims. Relying on Lowell, the court ruled that " [t]he Borough correctly asserts that the plaintiffs may not make a claim for infringement of a constitutional right as long as alternative statutory remedies exist," and the Krauses " acknowledge they have a cause of action for damages associated with the alleged violations of the Borough ordinances, as well as a statutory remedy under
AS 29.40.190."  The court ruled that the Krauses' remaining claims are time-barred for three reasons. First, the court reasoned that the claims under Borough ordinances are subject to the two-year limitation of AS 09.10.070, which governs causes of action " for ... injury to the rights of another not arising on contract and not specifically provided otherwise." Second, the court ruled that the two-year statute of limitations period in AS 09.10.070 barred claims against the Christiansens for compensatory damages and injunctive relief. Third, the court ruled that the one-year statute of limitations period in AS 09.10.090 prevented the Krauses from bringing a claim for statutory penalties. The court rejected the Krauses' argument that they were subject to a continuing violation, reasoning that the Krauses' claims accrued " at the time the Borough platting authority approved the proposed final plat without the easement plaintiffs expected" even though the injury was ongoing. The court noted that the Krauses had not made allegations suggesting that the accrual was delayed by late discovery of the change to the plat and specified that this claim was dismissed without prejudice, so if the Krauses could " assert facts which would toll the two year statute of limitations," the court would consider a motion to amend the complaint. The court rejected the contention that longer limitations periods in AS 09.10.030 (governing recovery of real property), AS 09.10.100 (the " catch-all" statute of limitations) or AS 09.10.050 (for trespass and waste) applied to the Krauses' claims.
On December 17, the Krauses requested leave to amend their complaint. They asserted that the statute of limitations period for their statutory claims was equitably tolled by their " administrative appeal," which the superior court did not resolve until March 2007. Equitable tolling applied, they argued, because they pursued a remedy in another forum, thereby indicating to the defendants that they were contesting the plat. The Krauses submitted an affidavit describing the history of their actions after the plat was recorded, including their communications with Borough officials and the BOAA appeal. They also lodged an amended complaint, which contained a new paragraph asserting that:
[t]hroughout a lengthy, multi-year, period, the plaintiffs attempted to negotiate with the defendants in good faith, pursuing remedies through mediation, as well as in a quasi-judicial forum (the [BOAA] ), and in a judicial forum (an appeal taken to the superior court from the decision of the [BOAA] that it lacked jurisdiction to address the issues raised by the plaintiffs).
The Borough opposed the Krauses' motion to amend, offering four reasons the elements of equitable tolling were not met: (1) the Krauses' previous case was an appeal of the Borough Manager's letter rather than an appeal of the approval of the plat; (2) collateral estoppel bars the Krauses from arguing that the Borough Manager is a judicial or quasi-judicial forum, and, in the alternative, the Borough Manager is not such a forum; (3) the Krauses' administrative appeal of the BOAA decision (assigned to Judge Cutler) did not put the Borough or the individual defendants on notice of all of the claims asserted in the second superior court case; and (4) the Krauses' initial attempt to secure a remedy via private meetings with the Borough Manager was not a reasonable way to pursue a legal claim. The Borough attached four documents from the BOAA appeal to its opposition: the Borough's motion to dismiss the BOAA appeal, the Krauses' opposition to that motion, the Borough's reply, and Judge Cutler's decision on appeal.
The individual defendants also opposed the Krauses' motion to amend. They argued that the Krauses should have made an equitable tolling argument before Judge White ruled on the motion to dismiss and that leave to amend is not permitted " when the purpose is to reargue what has been decided." They also denied that they were involved " in any
proceedings with respect to their property" between the filing of the plat in November 2002 and the filing ...