Appeal
from the Superior Court No. 1JU-14-00681 CI of the State of
Alaska, First Judicial District, Juneau, Louis J. Menendez,
Judge.
Robert
S. Spitzfaden, Gruening & Spitzfaden, APC, Juneau, for
Appellant.
Robert
H. Palmer, III, Assistant Municipal Attorney, and Amy Gurton
Mead, Municipal Attorney, Juneau, for Appellee City and
Borough of Juneau. No appearance by Appellees Chris Gilberto
and Ann Gilberto.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
MAASSEN, Justice.
I.
INTRODUCTION
A
landowner contends that his neighbors' fence violates two
restrictive plat notes. The neighboring properties are in two
different subdivisions, and the landowner is therefore not
bound by the same restrictive plat notes that he seeks to
enforce against his neighbors. The landowner complained about
the fence to the Director of Juneau's Community
Development Department, but the Director responded that the
fence was allowed, citing longstanding policy.
The
landowner appealed to the Planning Commission, which affirmed
the Director's decision. The landowner next appealed to
the Juneau Assembly, which rejected his appeal for lack of
standing. The landowner appealed this decision to the
superior court, which affirmed the Assembly's reliance on
standing as grounds to reject the appeal. The landowner
appeals to us.
We
conclude that the Director's decision was an appropriate
exercise of his enforcement discretion, not ordinarily
subject to judicial review. On that alternative ground we
affirm the superior court's dismissal of the appeal. We
decline to address the standing issue on which the Assembly
and the superior court based their decisions.
II.
FACTS AND PROCEEDINGS
A.
Facts
An
undeveloped greenbelt buffer runs between Bill Yankee's
property and the back of Chris and Ann Gilbertos'. The
two properties are in different subdivisions and therefore
subject to different covenants: Yankee's property is in
the Nunatak Terrace Subdivision whereas the Gilbertos' is
in the Montana Creek Subdivision.
The
Gilbertos built a fence along their side of the greenbelt
buffer. According to the Gilbertos, they checked with the
Community Development Department (CDD) of the City and
Borough of Juneau (CBJ) before building the fence and were
repeatedly assured that it was allowed. But Yankee -
concerned that the fence interfered with the movement of
ducks through the greenbelt - asserted that it violated two
plat notes[1] on the recorded plat of the Montana Creek
Subdivision applicable to its southern boundary line, where
it adjoins Nunatak Terrace and another subdivision. One of
the plat notes requires a "30 [foot] 'no-build'
structure setback"; the other requires "no
disturbance to [a] 20 [foot] natural green belt & visual
buffer easement."[2]
B.
Proceedings
Yankee
first brought his complaint about the Gilbertos' fence to
the CDD. The Director's response, in the form of a
four-page letter addressed to Yankee, began by stating that
its purpose was "to clarify the [CDD] policy regarding
fences and to formally notify you of my decision as CDD
Director regarding this case." What followed was a
description of the subdivisions' development and an
explanation of CBJ's fence policy going back "to at
least 1999." The Director explained that the Montana
Creek plat notes were primarily intended to "ensure that
existing vegetation would be preserved" in the greenbelt
buffer area so that neighboring properties would be shielded
from the new and denser Montana Creek subdivision; he
explained that fences, with some limitations, were actually
consistent with those purposes. The Director's decision
concluded:
The fence in this particular case was constructed in such a
way as to be consistent with the standing CDD policy and
appears to be of minimal visual impact since it is wire and
less than five feet tall. The wire fence allows for the
vegetative buffer to show through unlike other fences that
might allow for greater privacy. It appears reasonable that
the property owner would want to denote where his property
line is and where the neighboring properties begin and to do
this [in] a manner that does not impair the neighbor's
enjoyment of the greenbelt, since the same right is afforded
to the non-Montana Creek subdivision property owner.
Yankee
appealed the Director's decision to the CBJ Planning
Commission. The Commission rejected his appeal on its merits,
finding that the plat notes were ambiguous and that Yankee
failed to demonstrate that the fence was prohibited. Yankee
next appealed to the CBJ Assembly, which also rejected his
appeal, though not on the merits. The Assembly relied instead
on a memorandum from the CBJ Law Department concluding that
Yankee lacked standing to enforce the plat notes because he
did not own property in Montana Creek Subdivision.
Yankee
then appealed to the superior court, which affirmed the
Assembly's decision that he lacked standing. Yankee
appealed to this court.
III.
STANDARD OF REVIEW
"When
the superior court acts as an intermediate court of appeals
in an administrative matter, we independently review the
merits of the agency's decision."[3]Because the scope
of appellate jurisdiction "does not 'implicate
special agency expertise or the determination of fundamental
policies within the scope of the agency's statutory
function, ' we will substitute our independent judgment
for that of the agency."[4]
Although
courts generally refrain from reviewing an executive
agency's exercise of discretionary enforcement authority,
we have observed that we may review such an exercise to
insure its "conformity with law and that it is not so
capricious or arbitrary as to offend due
process."[5]
IV.
DISCUSSION
Yankee's
opening brief in this appeal focused on the issue of standing
- the sole ground on which the Assembly and the superior
court declined to hear the merits of his appeal from the
Director's decision. CBJ, in its appellee's brief,
raised the issue of subject matter jurisdiction; it
characterized the Director's decision as either (1) an
attempt to adjudicate a private dispute, for which the CDD
lacked jurisdiction; (2) a "policy advice letter"
which the CDD had authority to issue but from which there was
no right of appellate review; or (3) a discretionary
enforcement decision which the CDD had authority to make but
from which, again, there was no right of appellate review. In
his reply brief Yankee pushed back against the
characterization of the Director's decision as an
"advisory opinion" (or "advice letter"),
contending that although the decision "clarifie[d] the
CDD fence policy, " in doing so it resolved Yankee's
complaint "pursuant to the Director's enforcement
authority."
We
agree with CBJ that the dispositive issue is one of
reviewability. We hold that the Director's decision was
an appropriate exercise of his enforcement discretion that we
should not review. In reaching this holding we do not find it
necessary to consider whether the decision was properly
appealable within the CBJ administrative hierarchy - from the
CDD to the Planning Commission to the Assembly - nor do we
decide the standing issue that the superior court found
dispositive. We focus only on whether a discretionary
enforcement decision, with whatever layers of review the
executive has given it, should also be subject to our review.
A.
The Director Has Enforcement Authority Over Matters
...