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Corkery v. Municipality of Anchorage

Supreme Court of Alaska

September 14, 2018


          Appeal from the Superior Court of the State of Alaska, Third Judicial District, Superior Court No. 3AN-15-06252 CI Anchorage, Dani Crosby, Judge.

          David D. Clark, Law Office of David Clark, Anchorage, for Appellants.

          Samuel C. Severin, Assistant Municipal Attorney, and Rebecca A. Windt-Pearson, Municipal Attorney, Anchorage, for Appellee.

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


          BOLGER, Justice.


         Homeowners appeal the denial of their application for a variance by the Municipality of Anchorage Zoning Board of Examiners and Appeals. Thehomeowners' house exceeds the 30% lot coverage limit for their zoning district by over 10% due to a renovation performed in 1983 by a prior owner. The Board denied the variance application because it concluded that three of the seven standards required to grant a variance had not been satisfied. On appeal, the homeowners challenge the Board's interpretation of the variance standards. They also argue that the equitable doctrine of laches bars the Board from denying their variance request. Finally, the homeowners argue that the Board's consideration of a memo written by a Municipality attorney violated their due process rights and that this violation warrants a trial de novo in the superior court.

         After independently interpreting the variance standards, we agree with the Board's interpretation. In light of our de novo interpretation of these variance standards, any error in the memo's legal advice or in the process of the Board's consideration is harmless and does not warrant trial de novo. We also conclude that the homeowners cannot invoke the defense of laches because, in the zoning context, this defense is available only to defendants in a zoning enforcement action, and here the homeowners are plaintiffs seeking affirmative relief. We therefore affirm the superior court's decision affirming the Board's denial of the homeowners' variance request.


         A. Facts

         Patrick and Brooke Corkery have owned their Anchoragehomesince1998. The house sits on an 11, 250-square-foot[1] corner lot; the lot slopes downhill to the southwest at a minor grade. The Municipality of Anchorage originally issued a certificate of occupancy in 1965 permitting a two-story, 2, 359-square-foot house on the lot. In 1965 (and currently) the lot was zoned in R-1A, for which the maximum lot coverage is 30%. In 1969 a building permit was issued for the addition of a 184-square-foot greenhouse to the home.

         In 1983 a prior owner substantially expanded the house so that the new lot coverage significantly exceeded the 30% limit. Although the former owner claims she secured all necessary building permits for the addition, the Municipality has no record of any permit being issued for the home expansion. The home's footprint is currently 4, 401 square feet. The footprint of the home has not increased since 1983, with the exception of 60 square feet that the Corkerys added to the deck (without obtaining a permit) in 2011. The Municipality has since taxed the property based on the increased square footage.

         In 2013 the Corkerys were replacing the home's roof when they discovered significant rot in the roof and in the wall between the home interior and the attached greenhouse. This damage apparently placed the greenhouse at risk of imminent structural failure and required immediate attention. The Corkerys applied for a construction permit to tear down and rebuild the greenhouse. In August 2014 the Municipality issued the Corkerys a conditional permit that allowed them to perform the necessary repairs at their own risk but required them to apply for and obtain a zoning variance before a certificate of occupancy would be issued for the home following the repairs. The variance was required because the footprint of the home exceeded 30% of the lot coverage and therefore violated the R-1A zoning restriction.[2]

         B. Zoning Board Of Examiners And Appeals Proceedings

         The Corkerys applied for a zoning variance in October 2014 to allow a lot coverage of 40.12%, a variance of 10.12% over the permitted lot coverage. Their application urged that a variance was required in order to allow the home "to remain and obtain occupancy." In a later addendum to their application, the Corkerys offered to remove the portion of their deck that they had added in 2011 along with a portion of the deck that encroached on the secondary front-yard setback (which would reduce the total lot coverage to 39.4%) but otherwise proposed maintaining the home's current footprint.

         Municipality planning staff conducted an analysis of the variance application and issued a memo recommending that the application be denied. In making this recommendation, the memo considered the seven standards used to evaluate applications for a variance from zoning regulations:

a. There exist exceptional or extraordinary physical circumstances of the subject property such as, but not limited to, streams, wetlands, or slope, and such physical circumstances are not applicable to other land in the same district;
b. Because of these physical circumstances, the strict application of this code would create an exceptional or undue hardship upon the property owner, and would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of the zoning ordinance;
c. The hardship is not self-imposed, and special conditions and circumstances do not result from the actions of the applicant and such conditions and circumstances do not merely constitute inconvenience;
d. The variance, if granted, will not adversely affect the use of adjacent property as permitted under this Code;
e. The variance, if granted, is in keeping with the intent of this Code, will not change the character of the zoning district in which the property is located, and will not permit a use that is not otherwise permitted in the district in which the property lies;
f. The variance, if granted, does not adversely affect the health, safety, and welfare of the people of the Municipality of Anchorage; and
g. The variance granted is the minimum variance that will make possible a reasonable use of the land.[3]

         The memo concluded that four of the seven standards, standards one, two, three, and seven, were not substantially met.[4] The memo recommended in the alternative that, if the Board found that all the standards were satisfied, it should grant the variance on the condition that a 325-square-foot deck, including the portion added in 2011, be removed.

         In November 2014, while the Corkerys' variance application was pending, assistant municipal attorney Quincy Hansell wrote a memo to senior municipal planner Margaret O'Brien entitled "Update on Variance Law." The Hansell memo was drafted in response to an August request from O'Brien for an update on the law governing variance requests. O'Brien's request stemmed from an argument made by a party in a recent variance proceeding. The party contended that our opinion in City & Borough of Juneau v. Thibodeau [5] had been overruled. At the time that she requested the legal opinion, O'Brien had no knowledge of the Corkerys' case - indeed, their variance application had not yet been submitted - and O'Brien did not learn of the Corkerys' application until about one year after requesting the memo.

         The Hansell memo makes a very brief reference in its introduction to the specific case that spurred O'Brien's request, but otherwise its analysis is framed in general terms and does not reference a specific case. The memo first concludes that the relevant portion of Thibodeau - in which we set out the standard for granting a variance - was still good law. It asserts that the only portion of Thibodeau that had been subsequently overruled related to an ancillary issue of statutory interpretation.[6] The Hansell memo then provides an overview of the law governing variance requests, including this court's case law, the relevant Anchorage Municipal Code provisions, and case law from other jurisdictions. The crux of the memo's message on this point was the paucity of Alaska-specific case law on variance standards. The memo concludes by stating:

There is very little case law available to indicate any trend in Alaska because very few decisions made at the local level are appealed. Nationwide, the trend in case law over recent years shows a strengthening of the standards for granting variances. Yet studies show that at the local level, boards tend to grant most requests for variances - with little regard to any rules of law expressed by the courts. We imagine many of these would be overturned, if appealed. We expect the [Board] to diligently apply and follow the law to avoid generating costly appeals. (Footnotes omitted.)

         O'Brien received the Hansell memo and distributed it to the Board's members in early December 2014. A week later, on December 11, the Board held the first of two hearings in which it reviewed the Corkerys' variance application. After presentations from both municipal staff[7] and the Corkerys' representative, the Board voted to postpone voting on the application. The postponement was to allow municipal planning staff to provide additional information, including whether the Corkerys' home was eligible for nonconforming rights. Municipal staff indicated that if the Corkerys obtained a nonconforming-rights determination for the lot coverage, a variance would not be necessary.[8] After voting for postponement, the Board Chair noted that he had not "had a chance to read the [Hansell memo] that was in [the Board's] packet," but he planned to ask questions about it at the next meeting. Another Board member responded that he had read the Hansell memo and "[i]t added clarity as hoped for," but he was "interested in other [B]oard members' comments either offline or at the next meeting to help further guide [him] in [his] efforts to act appropriately."[9]

         The Board again considered the Corkerys' variance application at its January 8, 2015 meeting. At the conclusion of the hearing, the Board denied the application by a vote of 4-2. One of the Board members referenced the Hansell memo in explaining her vote for denial.

         In its written findings of fact issued two months later, the Board found that standards one, two, and seven were not met. Standard one was not met because "[t]he physical condition of the land [did] not contribute to the need for a variance from lot coverage." The findings noted that the dissenting Board members found this standard met based on the lot's corner position and sloping topography, as well as the discrepancy between the recorded plat size and the lot's actual size. The Board found that standard two was not met because, even if the lot was oddly shaped and sloping, these physical circumstances did "not necessitate increasing the building footprint over the maximum allowed." The dissenting members stated, however, that "reducing the lot coverage would be an undue hardship because parts of the house would need to be removed." Finally, the Board found that standard seven was not satisfied because the Corkerys could make reasonable use of the property without the variance. The dissenters countered that this standard was met because "removing over 1, 000 square feet of building footprint to meet the maximum lot coverage requirement is not reasonable."

         C. Superior Court Proceedings

         The Corkerys appealed the Board's decision to the superior court. During the superior court proceedings, the Corkerys sought to obtain the Hansell memo from the Municipality because Board members had referenced it during the hearings. After initially refusing on the basis of attorney-client privilege, the Municipality ultimately waived the privilege and produced the memo but objected to the Corkerys relying on the memo in their appeal. The Corkerys then moved to add the memo to the record on appeal, arguing that it was necessary to the resolution of their case. They also requested a trial de novo in the superior court on the basis that "the [Municipal] Attorney's Office secretly poisoned the well" in the Board proceedings by distributing the Hansell memo to the Board "shortly before the Corkerys['] variance petition was heard." (Emphasis omitted.)

         The superior court denied the Corkerys' motion to expand the record on appeal to include the Hansell memo. After the superior court denied their motion for reconsideration, the Corkerys petitioned this court for interlocutory review; we denied the petition. While that petition was pending, the superior court denied the motion for a trial de novo.

         Proceedings continued in the superior court, where the Corkerys raised three primary arguments: the Board incorrectly interpreted the variance provision to require compliance with all seven standards, rather than just a substantial number of them; their existing home constituted an exceptional or extraordinary physical circumstance necessitating a variance; and the Municipality was barred by the doctrine of laches from refusing to grant the variance. The superior court rejected each of these arguments and affirmed the Board's decision to deny the variance.

         The Corkerys appeal the superior court's decision.


         "When the superior court acts as an intermediate appellate court, we independently review the merits of the underlying administrative decision."[10] As a general matter, our "review of zoning board decisions is narrow and . . . a presumption of validity is accorded those decisions."[11] However, in this case the Corkerys allege that the Board's interpretation of the variance standards in the zoning code was improperly influenced by the Hansell memo. Accordingly, we decline to grant deference to the Board's interpretation here and instead interpret the variance standards de novo, exercising our independent judgment.[12] We interpret the variance standards "according to reason, practicality, and common sense, considering the meaning of the [ordinance's] language, its legislative history, and its purpose."[13] We will adopt ...

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