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K. & G. LeDoux v. Kodiak (3/20/92), 827 P 2d 1121
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
KURT M. LeDOUX and )
GABRIELLE LeDOUX, ) Supreme Court No. S-3997
Appellants, ) Trial Court No.
) 3KO-89-210 Civil
) O P I N I O N
KODIAK ISLAND BOROUGH, )
Appellee. ) [No. 3822 - March 20, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Roy H. Madsen, Judge.
Appearances: Kurt M. LeDoux, LeDoux and
LeDoux, Kodiak, for Appellants. Joel H.
Bolger, Jamin, Ebell, Bolger & Gentry,
Kodiak, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Appellee, Kodiak Island Borough (Borough), sued the
LeDouxs to enjoin them from using their property as a
professional office building in violation of the Borough's
minimum parking regulations. The trial court granted the
Borough's summary judgment motion. The LeDouxs appeal. We
Joel and Carol Davis owned property in Kodiak. The
property was zoned for multi-family residential use. The LeDouxs
wanted to buy the property and use it as a combination law office
and apartment. In October 1987, the Davises applied for a zoning
variance to use the property as a professional office and
upstairs apartment. The Borough accepted the variance
application subject to submittal of a parking plan.1 The LeDouxs
provided the Borough with a parking plan that included eight off-
street parking spaces on the property. In November 1987, the
Borough approved the variance. In December 1987, the LeDouxs
bought the property from the Davises. The LeDouxs have never
provided the off-street parking.
In May 1989, the Borough sued the LeDouxs to enjoin
them from using the property as a professional office building.
In July 1989, the Borough moved for summary judgment. In
November 1989, the LeDouxs applied to the Borough for an altern
ative parking location variance. In December 1989, the Borough
denied the LeDouxs' alternative parking location variance
application. The LeDouxs moved to stay the Borough's injunction
action pending administrative and judicial review of the LeDouxs'
application for alternative parking. On January 12, 1990, the
trial court implicitly denied the LeDouxs' motion to stay by
granting the Borough's summary judgment motion. However, the
trial court's order allows the LeDouxs to continue using the
property as a professional office building pending a final
decision on the LeDouxs' application for an alternative parking
The trial court also awarded $3,350 in Civil Rule 82
attorney's fees to the Borough. The Borough expended $4,547.50
in attorney's fees. The LeDouxs appeal both the trial court's
grant of summary judgment and award of attorney's fees.
A. Did the trial court err in granting the remedy of
The LeDouxs argue a court can only grant an injunction
if two requirements are satisfied: 1) there is no adequate
remedy at law; and 2) harm will result if the injunction is not
granted. The LeDouxs argue that the trial court improperly
granted the injunction because in the present case neither
requirement is satisfied. As for the first requirement, the
LeDouxs argue their administrative attempt to seek alternative
parking approval is an adequate remedy at law. As for the second
requirement, the LeDouxs argue there is no harm to the public
because the LeDouxs park their cars in a parking lot across the
street from their office.
The Borough cites AS 29.40.190(a) which provides that
"[a]n action to enjoin a [zoning] violation may be brought not
withstanding the availability of any other remedy." The Borough
argues since the statute authorizes an injunction, the Borough is
not required to show harm or the lack of an adequate legal
As noted above, AS 29.40.190(a) authorizes injunctive
relief. "Where a statute specifically authorizes injunctive
relief, the plaintiff need not show either irreparable injury or
lack of an adequate remedy at law." Carroll v. El Dorado Estates
Div. No. 2 Ass'n, Inc., 680 P.2d 1158, 1160 (Alaska 1984).
Therefore, the Borough did not need to show harm or the lack of
an adequate legal remedy. The trial court was correct in
granting the remedy of an injunction.
B. Did the Borough represent to the LeDouxs that it
is practicable to build a parking lot on the LeDouxs'
The LeDouxs appear to make an estoppel argument. They
argue that they bought the property in reliance on the Borough's
finding that it is practicable to build a parking lot on the
property. They claim that it is in fact impracticable to build
the parking lot. They insist that they should not suffer for the
The Borough responds that there is no evidence in the
record that the Borough represented it is practicable to build a
The LeDouxs reply that the Borough implicitly
represented to the LeDouxs that building the parking lot is
practicable by approving the LeDouxs' variance application.
Specifically, the LeDouxs argue that the Borough's statutory duty
to investigate their variance application includes a duty to
determine whether building the parking lot is practicable.2 The
LeDouxs argue that by approving the variance, the Borough
implicitly represented to the LeDouxs that it is practicable to
build a parking lot. The LeDouxs do not cite to any cases to
support this theory.
Estoppel consists of three general elements: 1) a rep
resentation; 2) reasonable reliance on that representation; and
3) resulting prejudice. Municipality of Anchorage v. Higgins,
754 P.2d 745, 748 n.11 (Alaska 1988). In the present case, the
Borough cannot be estopped from enforcing its zoning regulations
because it never represented that it is practicable to build a
parking lot on the LeDouxs' property.
The LeDouxs' property was originally zoned for
noncommercial use. The Borough's variance only allowed the
LeDouxs to use their property for commercial purposes.3 The
variance did not exempt the LeDouxs from the off-street parking
regulation. In fact, the Borough made it clear to the LeDouxs
that they would have to adhere to the parking regulations by
requiring the LeDouxs to submit a parking plan. In our view, the
Borough's requirement and acceptance of a parking lot plan is not
a representation that the parking lot can be built. The LeDouxs'
position would place a heavy and unwarranted burden on
municipalities. It would require municipalities to examine the
feasibility of every variance proposal or lose the ability to
enforce its zoning laws.
C. Was the award of attorney's fees justified?
The LeDouxs argue "[t]he award of $3,350.00 in
attorney's fees on a requested award of $4,547.50 was unjustified
and excessive." The LeDouxs argue the award is unjustified
because the Borough is not the prevailing party. The LeDouxs
explain "[the Borough] was denied an outright injunction, and the
LeDouxs were at least allowed an opportunity to seek alternative
parking." The LeDouxs argue the award is excessive because they
did not act in bad faith.
The Borough argues the trial court did not abuse its
discretion in determining that it was the prevailing party
because, inter alia, the Borough "won a judgment which requires
[the LeDouxs] to provide off-street parking." The Borough argues
that the trial court did not abuse its discretion in awarding the
amount of attorney's fees because its award of approximately
seventy-four percent of the Borough's actual attorney's fees is
well within the range of the trial court's discretion.
Alaska Civil Rule 82 authorizes the trial court to
award attorney's fees to the prevailing party. The prevailing
party for the purpose of an award of attorney's fees is the party
who prevails on the main issues of the case. Demoski v. New, 737
P.2d 780, 787 n.7 (Alaska 1987). The determination of the
prevailing party rests in the discretion of the trial court.
Buoy v. ERA Helicopters, Inc., 771 P.2d 439, 448 (Alaska 1989).
In the present case, the trial court did not abuse this
The Borough sued to enjoin the LeDouxs from violating
zoning regulations. The trial court granted this injunction.
Thus, the trial court had a reasonable basis for ruling that the
Borough is the prevailing party.
Rule 82 further provides, "[i]n actions where the money
judgment is not an accurate criterion for determining the fee to
be allowed to the prevailing side, the court shall award a fee
commensurate with the amount and value of legal services
rendered." This award rests in the discretion of the trial
court. Thorstenson v. ARCO Alaska, Inc., 780 P.2d 371, 376
In the present case, the trial court awarded approxi
mately seventy-four percent of the Borough's legal expenses. In
other cases, we have affirmed trial court awards of sixty to
eighty percent of the full attorney's fees incurred. E.g., Bovee
v. LaSage, 664 P.2d 160, 165 (Alaska 1983) (trial court awarded
$5,000 which approximated seventy percent of the total fees);
Brunet v. Dresser Olympic Div. of Dresser, Ind., 660 P.2d 846,
848 (Alaska 1983) (trial court awarded $6,000 which approximated
sixty-one percent of the total fees); Hausam v. Wodrich, 574 P.
2d 805, 811 (Alaska 1978) (trial court awarded $9,680 which
approximated eighty-six percent of the total fees). The present
award, approximating seventy-four percent of the total fees, is
consistent with these cases and thus is not an abuse of
The judgment is AFFIRMED.
1 KIBC 17.57.020 requires professional office buildings to
provide one parking space for each 300 square feet of gross floor
area and requires single-family dwellings to provide two parking
spaces for each unit.
2 KIBC 17.66.030 requires the Borough to investigate
variance requests. The LeDouxs' variance request included a
3 The purpose of a variance is to relax zoning requirements
in special circumstances. KIBC 17.66.010. Variances grant
relief "from the literal import and strict application of zoning
regulations." 101A C.J.S. Zoning and Land Planning 229 at 654