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Yankee v. City and Borough of Juneau

Supreme Court of Alaska

October 20, 2017

BILL YANKEE, Appellant,

         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.


          MAASSEN, Justice.


         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.


         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.


         "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]


         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 ...

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