from the Superior Court No. 3AN-16-06153 CI of the State of
Alaska, Third Judicial District, Anchorage, Erin B. Marston,
W. Colver, Colver & McMillan, LLC, Anchorage, for
Timothy J. Lamb and Whitney L. Traeger, Delaney Wiles, Inc.,
Anchorage, for Appellees
Manos and Jody Liddicoat. Kenneth M. Gutsch, Richmond &
Quinn, Anchorage, for Appellee Greatland Tree Service, LLC.
Before: Bolger, Chief Justice, Winfree, Stowers, and Carney,
Justices. [Maassen, Justice, not participating.]
had trees removed from a municipal right-of-way across the
road from their home, only obtaining a required permit
several months later. Neighbors, whose property abutted the
right-of-way and whose house had been behind the removed
trees, sued the homeowners and the tree-removal company for
damages. The superior court granted summary
judgment to the homeowners and the tree-removal company,
concluding that the municipality's subsequent permit
approving the tree removal negated the neighbors' claim.
The neighbors appeal. Because we agree that the
municipality's subsequent permit effectively conferred
lawful authority to cut the trees, we affirm the superior
FACTS AND PROCEEDINGS
material facts of this case are undisputed. Chris and Jeanne
Rosauer own a home and underlying property in Girdwood across
the municipal roadway from a home and underlying property
owned by Thomas Manos and Jody Liddicoat (collectively
Manos). The Municipality of Anchorage owns a right-of-way
between the Rosauers' property and the municipal roadway.
August 2015 Manos hired Greatland Tree Service, LLC to remove
several cottonwood trees within the municipal right-of-way in
front of the Rosauers' property. The Anchorage Municipal
Code requires private entities to obtain a permit for the
"use" of municipal rights-of-way, including tree
removal. Neither Manos nor Greatland obtained a
permit before the tree removal, but Greatland later obtained
a permit in October.
April 2016 the Rosauers sued Manos and Greatland, seeking
damages under Alaska's timber-trespass statute, AS
09.45.730,  which provides, in relevant part: "A
person who without lawful authority cuts down, girdles, or
otherwise injures or removes a tree, timber, or a shrub on
the land of another person or on the street or highway in
front of a person's house ... is liable to the owner of
that land." The next month Chris Rosauer asked the
Municipality to invalidate the permit issued to Greatland.
The Municipality denied Rosauer's request, explaining in
a permit-inspection report that the trees had been located on
a "right of way and not on private property" and
that their removal benefitted the Municipality by
"improv[ing] maintenance, snow removal, and access to
[a] drainage ditch." The report concluded that the
Municipality "will not permit the replacement of the
trees in the same location." Rosauer did not further
administratively challenge the permit.
parties sought summary judgment on the Rosauers' claims.
The motions raised two issues under the statute: whether the
retroactive permit negated the requirement that removal be
"without lawful authority" and whether the Rosauers
could bring a claim under the statute even though they did
not own the land from which the trees were removed.
joined by Greatland, argued that, because the statute does
not specify when authority must be obtained, the retroactive
permit constituted "lawful authority." The Rosauers
countered that, although the statute is silent on timing, the
Anchorage Municipal Code requires that a permit be obtained
before removing trees from a right-of-way. Manos responded
that the code allows the Municipality to waive "any
breach of any of the terms or conditions of a
permit" and that such terms and conditions include
the requirement for obtaining ...