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DeVilbiss v. Borough

Supreme Court of Alaska

August 28, 2015

RAY DeVILBISS, Appellant,

Appeal from the Superior Court No. 3PA-12-01028 CI of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge.

Ray DeVilbiss, pro se, Palmer, Appellant.

Blake F. Quackenbush, Law Office of Blake Fulton Quackenbush, Anchorage, for Appellant at oral argument. Nicholas Spiropoulos, Borough Attorney, Palmer, for Appellee.

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




A property owner whose property is within a road service area does not make use of the roads built and maintained with the road service taxes levied on all real property within the service area. He contends that Alaska law requires that his property be excluded from the service area and that the tax is invalid absent a special benefit to his property, as opposed to the general benefit to the service area. The superior court rejected these claims and granted the borough that oversees the service area summary judgment. Because Alaska law neither requires boroughs and municipalities to exclude properties that do not make use of roads financed by road service taxes nor ties the validity of a tax to each taxpayer's receipt of a special benefit, we affirm the grant of summary judgment.


In 1981 a road service area (RSA) in Matanuska-Susitna Borough was expanded by annexing territory that had not previously been part of the RSA. Ray DeVilbiss is the owner of three pieces of property that joined the RSA in the 1981 annexation. His farm abuts Clark-Wolverine Road, which currently is maintained by the State, not the RSA. He alleges that he makes no use of the roads that are maintained by the RSA.

In 2011 DeVilbiss petitioned the Matanuska-Susitna Borough Assembly, requesting that they remove his property from the RSA. The assembly denied his petition. DeVilbiss then filed a complaint against the Borough. The Borough opposed and moved to dismiss, a motion the superior court granted as to several claims it found non-justiciable. The Borough moved for partial reconsideration, and on reconsideration the superior court dismissed another claim as non-justiciable.

DeVilbiss then amended his complaint. His amended complaint contested the validity of the road service tax on a variety of statutory, common law, and constitutional grounds.

The Borough moved for summary judgment on one question of statutory construction. DeVilbiss opposed the Borough's motion and moved "for judgment on the pleadings" in his favor. The Borough opposed and cross-moved for summary judgment on the entire case, a motion DeVilbiss opposed.

The superior court granted the Borough's cross-motion for summary judgment. It characterized DeVilbiss's claims as "fall[ing] into two basic categories: (i) whether AS 29.35.450(c)(4) requires that the Borough remove his properties from RSA 19; and (ii) whether the RSA 19 tax is unlawful."

As to the first category of claims, the superior court rejected DeVilbiss's argument that the statute required that his property be removed: "The plain language of subsection .450(c)(4) does not create any mandate for agency action. Subsection .450(c)(4) specifically creates an exception to the voting requirement outlined in subsection .450(c); the subsection contains no language directing the Borough to take any action." The superior court further found that the legislative history supported the same reading.

As to the second category of claims, the superior court identified and rejected DeVilbiss's four challenges to the lawfulness of the RSA tax.

First, DeVilbiss argued that because he did not receive a special benefit from the road services funded by RSA taxes, the taxes violated the equal protection and due process clauses of the Alaska Constitution. The superior court rejected this argument, concluding that "Alaska law appears to hold that a benefit is not required." It found this rule to be consistent with United States Supreme Court precedent, which the superior court found asked "whether the tax is either palpably arbitrary or unreasonably discriminatory, not whether some special benefit is conferred." Because this tax was neither, the superior court concluded that it was constitutionally valid.

Second, DeVilbiss argued that the ad valorem tax actually collected was invalid because the Borough was required to fund the RSA with special assessments instead. The superior court concluded that article X, section 5 of the Alaska Constitution and AS 29.45.010 left the choice of funding mechanism "to the discretion of the Borough."

Third, DeVilbiss argued that several statutory provisions specifically required that every person taxed in a service area enjoy a benefit from those taxes. The superior court did not specifically address this argument in the portion of its order that explained its reasons for granting the Borough summary judgment.

Finally, DeVilbiss argued that the ballot language used in the 1981 annexation vote "created a binding contract, " which "acted as a guarantee against future taxes." The superior court found this argument time-barred by the 20 years that had passed since taxes were first collected in the RSA. It further found that, on the merits, the ballot ...

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