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Tweedy v. Matanuska-Susitna Borough Board of Adjustment & Appeals

Supreme Court of Alaska

June 20, 2014

CLIFTON O. TWEEDY, Appellant,
v.
MATANUSKA-SUSITNA BOROUGH BOARD OF ADJUSTMENT AND APPEALS, Appellee.

Appeal from the Superior Court of the State of Alaska No. 3AN-12-04609 CI, Third Judicial District, Anchorage, Kevin M. Saxby, Judge.

Ronald L. Baird, Office of Ronald L. Baird, Anchorage, for Appellant.

John Aschenbrenner, Deputy Borough Attorney, and Nicholas Spiropoulos, Borough Attorney, Palmer, for Appellee.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

STOWERS, Justice.

I. INTRODUCTION

Clifton Tweedy began leasing property from the Matanuska-Susitna Borough on Big Lake in May 1988. The property included a house that was built in 1968 and located less than 18 feet from the lakeshore. When Tweedy assumed the lease, the existing structure was exempt from the Borough's 75-foot shoreline setback ordinance because it was constructed before any setback requirement existed. Shortly after he took possession of the property, Tweedy constructed a stairwell addition on the exterior of the house. In 2010 Tweedy applied with the Borough to purchase the property. Because structures on the property were located less than 75 feet from the shoreline, the sale required an exemption or variance from the Borough's setback requirement. The Borough Planning Director determined that Tweedy's addition was unlawful and that the application could not be processed until Tweedy removed it. The Matanuska-Susitna Borough Board of Adjustment Appeals affirmed the Planning Director's decision. Tweedy appealed to the superior court, which also affirmed. Because the 75-foot setback applied to Tweedy's property when he constructed the addition, the addition was unlawful when it was built and he is not entitled to an exemption or variance. We affirm.

II. FACTS AND PROCEEDINGS

A. Facts

1. History of the shoreline-setback requirement

In 1973 the Matanuska-Susitna Borough Assembly (Assembly) adopted a shoreline-setback ordinance that prohibited structures "closer than 75 feet from the normal high water mark of a water course or body of water in a shoreland."[1] On June 18, 1981, the Assembly reworded the setback requirement and renumbered it as MSBC 16.25.480.[2] The Assembly gave Title 16 of the Borough Code the heading "Subdivision Regulations."[3] The new setback requirement provided that "no structure or footing shall be located closer than 75 feet from the high water mark of a watercourse or body of water."[4]

The shoreline-setback ordinance did not initially contain a provision expressly exempting structures built before a setback requirement existed, but in October 1986 the Assembly adopted an exemption for structures completed prior to January 1, 1986, if the owner had no knowledge of any violation before substantially completing construction.[5] In November 1986 the Assembly reduced the setback to 45 feet, [6] but a 1987 ballot initiative returned the setback to 75 feet.[7] In March 1987 the Assembly extended the exemption from the setback requirement to apply to structures completed before January 1, 1987.[8]

In September 1988 the Assembly repealed and replaced Title 16 and added a chapter to Title 17 entitled "Setbacks and Screening Easements."[9] The effect of this enactment was to move the 75-foot setback requirement from Title 16 to Title 17 as MSBC 17.55.020.[10] The relevant language of MSBC 17.55.020(A) is identical to that of former MSBC 16.25.480(A).[11] MSBC 17.55.020(C) maintains the exemption for construction completed prior to January 1, 1987.

2. Tweedy's property

The home on Lot 6B, Block 1, South Big Lake Addition was originally built in 1968. The house on the lot sits just 17.6 feet from the shore of Big Lake. On March 25, 1988, North American Savings and Loan Association, which preceded Tweedy as lessee, applied for an exemption from the setback requirements then contained in MSBC 16.25.480. The application included an as-built drawing showing the dimensions of the existing residence. The Matanuska-Susitna Borough Chief of Code Compliance approved an exemption from the shoreline setback for the structure, concluding that "it is my determination that the waterbody setback requirements of [MSBC] 16.25.480 do not apply to the structure(s) set out in this application." Presumably the Chief of Code Compliance approved the exemption on the grounds that the house was constructed before January 1, 1987, and North American had no knowledge of violating any setback requirements prior to any construction it completed.[12]

Tweedy assumed the lease of the property on May 11, 1988. Sometime shortly after taking possession, Tweedy constructed an exterior stairwell addition measuring six by eight by ten feet on the north side of the house. In 2010 Tweedy applied to purchase the property and its improvements from the Borough through a fee-simple purchase option available to him under his lease. Because the house was located less than 75 feet from the lakeshore, the sale required a setback exemption or variance. As part of his application to purchase the property, Tweedy submitted another as-built drawing showing the dimensions of the structures on the property as of July 20, 2010. The 2010 as-built drawing showed several structural additions, including the stairwell addition. The Borough sent a letter to Tweedy in October 2010 informing him that the additions on his property were not compliant with shoreline-setback requirements.

In January 2011 Tweedy went to the Borough planning office and spoke with Susan Lee, the planner who reviewed his as-built survey, and Robert Guertin, the Chief of Code Compliance. They discussed the additions to the property and compliance with setbacks, and Guertin and Lee requested that Tweedy submit written documentation of additions to the property. Tweedy agreed to provide documentation and ...


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