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Lazy Mountan Land Club v. Matanuska-Susitna Borough Board of Adjustment and Appeal (9/1/95), 904 P 2d 373
NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring errors
to the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
LAZY MOUNTAIN LAND CLUB, )
) Supreme Court Nos.
Appellant and ) S-5713/5714
) Superior Court No.
v. ) 3PA-91-852 Civil
MATANUSKA-SUSITNA BOROUGH ) O P I N I O N
BOARD OF ADJUSTMENT AND )
APPEALS, ) [No. 4242 - September
Appellee and )
Appeal from the Superior Court of the
State of Alaska, Third Judicial
Beverly W. Cutler, Judge.
Appearances: Charles E. Tulin,
Anchorage, for Appellant/Cross-Appellee.
Michael Gatti, Matanuska-Susitna Borough
Attorney, Palmer, for Appellee/Cross-
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and
Lazy Mountain Land Club (LMLC), a limited
partnership, appeals the denial of a conditional use permit
by the Matanuska-Susitna Board of Adjustment and Appeals.
LMLC argues that MSB 17.60, the borough zoning ordinance
requiring the permit, is invalid because it was not adopted
"in accordance with" or "in order to implement" a validly
enacted comprehensive plan as required by AS 29.40.040.
Alternatively, LMLC argues both that MSB 17.60 is
unconstitutionally vague, and that by its own terms it is
not applicable to LMLC's proposed land use.
I. FACTS & PROCEEDINGS
Lazy Mountain Land Club owns a 16.9 acre tract of
land near the intersection of the Parks Highway and Hyer
Road.1 This tract is located in the Twinook subdivision of
the Matanuska-Susitna Borough (Mat-Su or Borough).
LMLC intends to operate the land as a private
commercial refuse area doing business as the Dead Building
Cemetery. The facility would function primarily as a
disposal site for construction and demolition wastes.
According to LMLC, the site was chosen because of its
proximity to Anchorage as well as to numerous gravel pits
and other sources of construction materials. With a low
enough tipping fee it would be an economically viable
disposal site for demolition waste from buildings which had
been torn down in Anchorage. On their return trip "[t]rucks
bringing debris to the new burial site could back-haul sand
and gravel to the profitable Anchorage market."
In July 1989, LMLC applied to the Alaska
Department of Environmental Conservation (DEC) for the
necessary solid waste disposal permit.2 A permit was issued
by DEC on June 28, 1990.
LMLC also applied to the Mat-Su Planning
Commission for a conditional use permit. Mat-Su Borough
Code (MSB) 17.60.030 (1990) states that a conditional use
permit is required for land uses which are "potentially
damaging to the property values and usefulness of adjacent
properties and/or potentially harmful to the public health,
safety and welfare." The only enumerated land uses for
which a permit is required under this section are "junkyards
and refuse areas." MSB 17.60.030(A)(1).
After a public hearing, on November 27, 1989, the
Planning Commission issued a resolution denying LMLC's
permit application.3 LMLC appealed this decision to the
Borough Board of Adjustment and Appeals (BOAA).4 The BOAA
dismissed the appeal, finding that MSB 17.60 was a legal and
binding ordinance and that it did not have jurisdiction to
pass on the ordinance's constitutionality.
In December 1990, LMLC reapplied to the Planning
Commission for a conditional use permit. With the exception
of some minor changes, this application was substantially
similar to the application which had been denied in 1989.
The 1990 application was in two parts, requesting first that
the Commission determine whether LMLC's proposed use
required a permit under MSB 17.60. Second, if the
Commission determined that MSB 17.60 was applicable, LMLC
requested that the permit be granted. The Planning
Commission found that MSB 17.60 was applicable and once
again denied LMLC a conditional use permit.5
LMLC appealed this decision to the BOAA.6 A
hearing was held, and this time the BOAA reversed the
Planning Commission's determination.7 However, the BOAA
determined that approval of the conditional use permit
application was subject to the fulfillment of eleven
conditions. These conditions were aimed primarily at
ensuring that LMLC obtained the necessary state and federal
permits, that there would be no ground-water contamination,
and that adequate assurance was provided of LMLC's
capability to finance remediation efforts in the event of
The Borough moved for reconsideration of the BOAA
decision. After a hearing on the issue, on November 6,
1991, the BOAA reversed its earlier decision and denied the
conditional use permit. In its findings of fact, the Board
found, inter alia, that LMLC had operated the landfill
without fulfilling the conditions required by either the DEC
permit or the BOAA's resolution. The BOAA's Notice of
Decision states, "There exists no evidence, on the record,
that will substantiate a finding that Lazy Mountain Land
Club will operate in a manner that is not harmful to either
the public welfare or health. Therefore, . . . the
conditional use permit can not be granted."
LMLC filed a notice of appeal to the superior
court.8 It challenged the validity of MSB 17.60 due to Mat-
Su's alleged lack of a comprehensive plan, argued that MSB
17.60 was void for vagueness, and argued that MSB 17.60 was
not applicable to its proposed land use. The superior court
affirmed BOAA's denial of the conditional use permit,
holding for the Borough on all issues except Mat-Su's claim
that laches barred the suit. LMLC now appeals and Mat-Su
Initially, we address the Borough's argument on
cross-appeal that LMLC was barred from challenging Mat-Su's
comprehensive plan by laches. Laches prevents a plaintiff
from bringing a claim if the defendant can show "(1) that
the plaintiff has unreasonably delayed in bringing the
action, and (2) that this unreasonable delay has caused
undue harm or prejudice to the defendant."10
The superior court summarily dismissed the
Borough's defense of laches. The court stated:
The parties have thoroughly briefed the underlying issue,
and resolution of the underlying issue by the courts
probably will benefit the parties and the public. The court
also rejects the borough's assertions that estoppel and
laches should preclude consideration of the underlying
Without addressing the merits of the Borough's
argument regarding LMLC's delay, we note that we agree with
the superior court that a decision on the underlying issues
will benefit the parties and the public by determining the
validity of the Borough's planning process. Because we
resolve these issues in favor of the Borough, it was not
prejudiced by the superior court's decision that laches did
not bar the suit and any error would be harmless.
B. Was MSB 17.60 Validly Enacted?
LMLC's primary argument is that MSB 17.60 was not
validly enacted because the Borough does not have a
comprehensive plan. Alternatively, LMLC argues that even if
the Borough's 1970 plan could be considered a comprehensive
plan, this document was adopted by resolution rather than
ordinance as required by the enabling statute, and is
therefore invalid. Because AS 29.40.040 would seem to
require the adoption of a comprehensive development plan
prior to the adoption of zoning ordinances, LMLC contends
that the adoption of such an ordinance without a validly
adopted plan is ultra vires.
1. Adoption of a comprehensive plan
must precede enactment of zoning
The planning and zoning process as enacted by the
Alaska Legislature is typical of most state zoning statutes.
It envisions a hierarchical process in which the
comprehensive plan serves as a "long-range policy guide for
development of the [municipality] as a whole."12 The plan is
then implemented through zoning decisions.13 Additionally,
the existence of a comprehensive plan helps to "guard
against prejudice, arbitrary decision-making, and improper
motives" by providing substantive standards against which to
measure individual zoning decisions.14
This vision of land use regulation is evident in
Alaska's statutory language.15 The requirement that the
municipality adopt a comprehensive plan is found in AS
29.40.030(b), which states that "[w]ith the recommendation
of the planning commission, the assembly shall adopt by
ordinance a comprehensive plan."16 (Emphasis added.) The
statute defines a comprehensive plan as
a compilation of policy statements, goals, standards, and
maps for guiding the physical, social, and economic
development, both private and public, of the first or second
class borough, and may include, but is not limited to, the
(1) statements of policies, goals and standards;
(2) a land use plan;
(3) a community facilities plan;
(4) a transportation plan; and
(5) recommendations for implementation of the
The authority to enact zoning regulations such as
MSB 17.60 is found in AS 29.40.040(a), which states:
In accordance with a comprehensive plan adopted under
AS 29.40.030 and in order to implement the plan, the
assembly by ordinance shall adopt . . . provisions governing
the use and occupancy of land that may include, but are not
. . . .
(2) land use permit requirements designed to encourage
or discourage specified uses . . . or to minimize
unfavorable effects of uses . . . .
(Emphasis added.) LMLC cites numerous cases in which other
state courts interpreted similar statutory language and
found that "the adoption of a comprehensive development plan
is a necessary prerequisite . . . for the adoption of county
This court has endorsed this view of the relative
roles of planning and individual land use decisions in a
separate but analogous context -- public land management.
In Alaska Survival v. State, Department of Natural
Resources,18 we invalidated the classification and disposal
of public land for agricultural homesteading because the
decision to dispose of the land had preceded the adoption of
a regional plan. As we stated in Alaska Survival:
To interpret these provisions to allow classification and
disposal before regional planning defies logic. It makes
little sense to require comprehensive regional planning
after the relevant land use decisions already have been made
. . . .19
Mat-Su is correct in pointing out that the public lands
planning requirement in AS 38.04.065 is more specific than
the municipal planning requirement in reference to the
substantive standards which the planners should apply.20
However, this in no way alters the "logic" of requiring
planning to precede the individual land use decisions.
We therefore hold: (1) that the plain language of
AS 29.40.030(b) is mandatory and requires that the
municipality adopt a comprehensive plan;21 (2) that AS
29.40.040 requires that the plan be adopted prior to zoning
regulations; and (3) where zoning is enacted prior to the
adoption of a comprehensive plan, these statutory sections
require that a legal remedy be imposed.22
2. Mat-Su's comprehensive plan23
LMLC's next argument challenging the validity of
the Borough's planning process is that the document entitled
"The Matanuska-Susitna Borough Comprehensive Development
Plan," adopted by resolution in 1970 (the 1970 plan), along
with the other documents which Mat-Su offered as evidence,
do not constitute a "comprehensive" plan as required by AS
Mat-Su argues that "[t]he 1970 comprehensive plan
is but one element of the plan that, along with the other
documents drafted by Mat-Su, encompass the elements of Mat-
Su's comprehensive planning process." "The other documents"
referred to by Mat-Su are catalogued in an affidavit by John
Duffy, the Borough Planning Director. These include
comprehensive transportation and public facilities plans,24
city plans for Houston,25 Palmer,26 and Wasilla,27 as well as
numerous other area and facilities plans.
LMLC argues that a "comprehensive plan" must be of
"wide scope." It states that the presence of city plans
does not diminish the obligation of the Borough to adopt a
single area-wide plan which covers the entire municipality.
Without such a plan in place there is no guarantee that city
plans will not conflict with each other. Finally, LMLC
argues that the single most important part of the plan, the
borough-wide land use plan, was never adopted by ordinance.
As discussed above, AS 29.40.030(a), which defines
"comprehensive plan," states that the plan "may include, but
is not limited to," numerous different elements including,
inter alia, a statement of policies, a land use plan, and a
community facilities plan. Thus, while the Borough is
required to adopt a plan, the statute leaves it within the
Borough's discretion what elements to include within that
plan. This allows planners to fashion the plan to the needs
of the community, which in turn will be affected by such
factors as population density, topography, and the local
economy. In light of these factors, it may make sense, and
would be statutorily permissible, to engage in more detailed
land use planning of population centers in the borough,
while limiting the planning efforts with regard to the
entire borough to a statement of policies.28
Nor does the fact that the various elements of the
plan were adopted in a piecemeal fashion affect our
determination as to whether, as a whole, they comprise a
comprehensive plan.29 While Alaska's statute is silent on
this issue, the Standard City Planning Enabling Act, as well
as the planning acts of California, Illinois, New Jersey,
and Connecticut, all explicitly authorize piecemeal adoption
of the comprehensive plan.30 Such an approach recognizes the
limited budgets of municipal entities, the ongoing nature of
the planning process, and the fact that in certain instances
different elements of the plan are dependent on each other
and therefore that sequential enactment might be desirable.31
In light of the broad discretion left to the municipality in
the composition of the plan and the substantial evidence in
the record regarding the Borough's planning efforts, we hold
that Mat-Su has satisfied the requirement that it enact a
3. The enactment of Mat-Su's comprehensive
LMLC's final argument regarding the planning
process is that the Borough failed to adopt by ordinance the
1970 plan and some of the other documents which it claims
comprise the plan. Because the enactment of an ordinance
allows the public an opportunity for notice and comment,
LMLC contends that the Borough may not rely on "resolutions"
to adopt its comprehensive plan.
Alaska Statute 29.25.010 requires that certain
acts by a municipality must be done by ordinance.33 Among
those acts which are enumerated is the adoption,
modification or repeal of a municipality's comprehensive
plan.34 Alaska Statute 29.25.020 provides detailed
procedural requirements which must be followed in the
adoption of an ordinance. These include, inter alia, that
the ordinance be introduced in writing,35 that notice of the
proposed ordinance be published,36 and that a public hearing
be held before its adoption at which all interested persons
may speak.37 Because it must be enacted as an ordinance, the
adoption of a comprehensive plan must satisfy all of the
procedural requirements listed in AS 29.25.020.
Mat-Su makes two arguments as to why the court
should uphold the validity of the 1970 plan despite the fact
it was never adopted as an ordinance. First, it argues that
there is a presumption of validity as to all municipal
actions and that the burden of proving otherwise is on the
person trying to show their invalidity. Because LMLC has
not provided any evidence that notice and hearings were not
held on the 1970 plan, the court must presume it was validly
The Borough relies heavily on Liberati v. Bristol
Bay Borough38 for this argument. In Liberati, this court
applied the presumption of validity and concluded that a
public hearing that was noticed was actually held, and
therefore that the challenged ordinance was validly enacted.
In contrast, in the present case the Borough is trying to
use this presumption to metamorphize a resolution into an
ordinance. Professor McQuillin notes that the enactment of
a resolution generally does not require the same formal
procedures which are required to enact an ordinance.
Therefore, "a municipal corporation cannot accomplish by
resolution . . . that which, under its charter, it can do
only by an ordinance."39 This distinction is evident in our
statutes. The procedural requirements for enacting an
ordinance are detailed supra. The only requirement with
regard to resolutions, on the other hand, is that the
governing body maintain a permanent file of all resolutions
which have been adopted.40 In light of the fact that the
1970 plan was adopted as a resolution rather than an
ordinance, and that the Borough presented no evidence that a
hearing was held, there is no reason to believe that the
requirements of AS 29.25.020 have been met.
Mat-Su's second argument is that, even assuming
that no hearing was held, it "substantially complied" with
the requirement that it enact a comprehensive plan.
Therefore the act should not be voided due to a minor
procedural irregularity. We reject this argument as well.
In State v. First National Bank of Anchorage,41 the principle
case on which Mat-Su relies, the appellant challenged the
adequacy of the notice of a proposed regulation. We
rejected the appellant's claim because the contents of the
notice "gave members of the public sufficient information to
decide whether their interests could be affected by the
agency action."42 Similarly, in other jurisdictions where
the enactment of zoning ordinances was upheld under a theory
of "substantial compliance," the procedural irregularities
can all be characterized as minor.43 Where, on the other
hand, there is no opportunity for public comment on the plan
before enactment because of a failure to hold public
hearings, the Borough has not substantially complied with
the requirement that it enact the plan by ordinance.44
Nonetheless, we believe the 1970 plan was validly
enacted when it was incorporated by reference into a later
borough ordinance.45 MSB 15.24.030(B) states that "[t]he
following comprehensive plans have been adopted by the
borough planning commission and the assembly as instruments
of borough policy: (1) Matanuska-Susitna Borough
Comprehensive Development Plan, adopted 1970, as amended . .
. ." This section was adopted by ordinance after a public
Generally, "the adoption by reference of documents
in municipal ordinances is valid where the document adopted
is sufficiently identified and is made part of the public
record."47 In Raymond v. Baehr,48 the Minnesota Supreme Court
upheld the enactment by reference of a building code despite
the fact that the code itself was not published as required
by state law. In determining that the code qualified as a
public record the Minnesota Supreme Court noted:
While the exact procedure followed by the city council in
adopting the code is not clear, it appears . . . that the
code was drawn by the city engineer and a committee of the
council, read to the entire body, and apparently approved.
These actions appear to us to be sufficient to qualify it as
a public record.49
Similarly, the 1970 plan qualifies as a public
record. It was drawn up by the Borough Planning Department
and was adopted as a resolution by the Borough Assembly.
Because the borough's citizens had an opportunity for
comment at a public hearing when MSB 15.24.030(B) was
enacted in 1991, we hold that the 1970 plan was adopted by
ordinance as required by AS 29.25.010(a)(6).
C. Due Process50
LMLC's next claim is that even assuming it was
validly enacted, the definition for "junkyard/refuse area"
in MSB 17.60.010(F) is unconstitutionally vague. This
section defines a "junkyard/refuse area" as
a location which is commercially used for the purpose of the
outdoor storage, handling, dismantling, wrecking, keeping or
sale of used, discarded, wrecked or abandoned airplanes,
appliances, vehicles, boats, building and building
materials, machinery, equipment, or parts thereof, including
but not limited to, scrap metals, wood, lumber, plastic,
fiber or other tangible materials.
MSB 17.60.010(F). LMLC argues that this definition
encompasses such a wide range of potential land uses that
many landowners would be unable to determine whether or not
the zoning ordinance applied to them.51 To show that the
statute has been arbitrarily applied, LMLC points out that
no conditional use permit was required for the municipal
landfill, a use seemingly indistinguishable from LMLC's
The United States Supreme Court long ago
recognized, "a statute which either forbids or requires the
doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and
differ as to its application violates the first essential of
due process of law."52
First amendment concerns aside,53 the U.S. Supreme
Court has identified two important due process values which
are offended when a law is unconstitutionally vague:
First, because we assume that man is free to steer between
lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity to
know what is prohibited . . . . Second, if arbitrary and
discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who apply them. A
vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc
and subjective basis, with the attendant dangers of
arbitrary and discriminatory application.54
In adopting this analytical framework, this court
stated that it will examine "three principal considerations
in determining whether a statute is unconstitutionally
vague."55 The first, whether the statute "operate[s] to
inhibit the exercise of first amendment rights,"56 is not
applicable to the present case. However, the second,
whether the statute gives adequate notice of what conduct is
prohibited, and the third, whether there "has been a history
or a strong likelihood of uneven application,"57 are
Additionally, the U.S. Supreme Court determined in
Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc.58 that a lower degree of exactitude is required for
civil as opposed to criminal statutes. Justice Marshall
wrote for the court:
The degree of vagueness that the Constitution tolerates --
as well as the relative importance of fair notice and fair
enforcement -- depend in part on the nature of the
enactment. Thus, economic regulation is subject to a less
strict vagueness test because its subject matter is often
more narrow, and because businesses, which face economic
demands to plan behavior carefully, can be expected to
consult relevant legislation in advance of action. Indeed,
the regulated enterprise may have the ability to clarify the
meaning of the regulation by its own inquiry, or by resort
to an administrative process. The Court has also expressed
greater tolerance of enactments with civil rather than
criminal penalties because the consequences of imprecision
are qualitatively less severe.59
In accordance with this view, we have stated that with
respect to civil statutes, "[a]ll that should be required is
legislative language which is not so conflicting and
confused that it cannot be given meaning in the adjudication
Applying these principles to the present case, we
conclude that MSB 17.60 is not void for vagueness. First,
as to the notice consideration, even a cursory reading of
MSB 17.60 makes it clear that the ordinance is applicable to
LMLC's proposed use. In its permit application, LMLC
indicated that seventy percent of its waste would be
demolition waste including building debris and non-metallic
residue from auto salvaging operations. LMLC would also
engage in the dismantling of mobile homes at the site. This
fits squarely within the definition of a junkyard under MSB
17.60.010(F) as a "location . . . used for the purpose of
outdoor storage, handling, dismantling, wrecking, keeping or
sale of used, discarded, wrecked or abandoned . . .
vehicles, boats, building and building materials . . . ."
(Emphasis added.) Additionally, the definition of "junk" in
MSB 17.60.010(E) includes "wrecked automobiles, tools,
implements, rags, used building materials, rubber and
paper." (Emphasis added.) Finally, in accordance with the
U.S. Supreme Court's decision in Hoffman Estates, because
this statute was economic regulation, and because LMLC
could, and did, avail itself of the administrative process
to clarify the statute's applicability, it is clear that
LMLC had sufficient notice.61
LMLC's primary contention with regard to vagueness
is that MSB 17.60 has been arbitrarily enforced. With
regard to this final consideration, this court has stated
that it "will not invalidate a statute on vagueness grounds
absent evidence of a history of arbitrary or capricious
enforcement."62 In other words, the court will not engage in
speculation to find instances where the statute might be
arbitrarily applied. Instead it will look to see if there
has been a history of arbitrary enforcement or if the
language of the statute is "so conflicting and confused"63
that arbitrary enforcement is inevitable.
LMLC fails to make such a showing in this case.
LMLC provides no evidence that there are other private
landfills or other similar land uses which the Borough has
not required to obtain a conditional use permit. Nor is the
Borough's failure to require a permit for its public
landfill evidence of arbitrary enforcement, because, as
discussed in the next section, MSB 17.60 only applies to
"commercial" junkyards and refuse areas. Because none of
the considerations suggests that MSB 17.60 is vague, we
conclude that the ordinance is constitutional.
D. MSB 17.60's Applicability to LMLC's Proposed Land
LMLC's final contention is that MSB 17.60 is not
applicable to its proposed land use and therefore that no
conditional use permit is required. LMLC argues that the
ordinance by its own terms applies only to salvage
operations and not to landfills where discarded materials
are buried.64 In support of this argument LMLC points to the
fact that no conditional use permit was required for the
municipal landfill, a use "virtually indistinguishable from"
LMLC's proposed use.65
Whether the municipal landfill is required to
obtain a conditional use permit depends on whether this use
falls within the definition of "junkyard/refuse area" in MSB
17.60.010(F). Because the definition includes only
"commercial" locations, the answer turns on the question of
whether or not the city landfill is a commercial enterprise.66
Resolution of this dispute requires the
interpretation and application of MSB 17.60. This court has
stated that "[w]hen a planning agency does, in fact, provide
its interpretation of an ordinance within its area of
expertise, we will give that interpretation considerable
deference."67 Although we have not previously defined
precisely what standard of review we will use in such cases,
we believe that application of the "reasonable basis" test
is appropriate.68 Under this test, the court "need not find
that [the Commission's] construction is the only reasonable
one, or even that it is the result [the court] would have
reached had the question arisen in the first instance in
Applying this standard, we conclude that the
Planning Commission could reasonably find that the municipal
landfill was not "commercial" and therefore that no permit
was required.70 Such an exception is justified because the
operation of the borough landfill is regulated under other
sections of the borough code.71 Additionally, the underlying
purpose of the conditional use permit requirement is to
allow the Planning Commission to make a case by case
determination about the appropriateness of placing a noxious
use in a particular area, as well as the necessity of
imposing particular conditions in order to mitigate the
impact on neighboring property.72 Because the Planning
Commission can use other planning devices to ensure the
appropriate siting of a municipal landfill, and can
recommend measures be adopted to regulate the landfill's
operation,73 the Commission could reasonably conclude that
private and public facilities should be treated differently.
Thus, there is no evidence that there is a conflicting
contemporaneous construction of the statute by the Planning
Commission. In light of the fact that the definition for
junkyard in MSB 17.60 clearly encompasses LMLC's proposed
land use, we hold that the Commission could reasonably find
that MSB 17.60 applies to LMLC's proposed land use and
therefore that a conditional use permit is required.
We conclude that the language in AS 29.40.040
requiring that zoning regulations be enacted "in accordance
with" or "in order to implement" the comprehensive plan,
requires that the Borough's zoning regulations must be
consistent with a validly enacted plan. The Borough has
satisfied this requirement because the various documents
which the Borough Assembly has adopted by ordinance together
with the 1970 plan which was enacted by reference comprise a
valid comprehensive plan. MSB 17.60 is not void for
vagueness and therefore does not violate LMLC's right to due
process of law. Finally, the BOAA could rationally have
found that MSB 17.60 applies to LMLC's proposed use and
therefore that a conditional use permit is required.
We therefore AFFIRM the superior court's decision.
1The official designation of this tract of land is Tract A,
Twinook Subdivision 69-136, Section 17, T17N, R1E, Seward
2This application was superseded by an amended application
dated May 16, 1990.
3MSB Planning Commission Resolution 89-124 (Nov. 27, 1989).
4MSB 15.38.020(B) gives the BOAA jurisdiction to hear
appeals from the Planning Commission on requests for a
conditional use permit. Any interested party, including the
applicant, may file an appeal within fifteen days of a
Planning Commission decision. MSB 15.38.120.
5MSB Planning Commission Resolution 91-23 (May 20, 1991).
6However, LMLC apparently began using the site commercially
prior to receiving the necessary permit. Both the Borough
and the DEC cited LMLC for its activities at the site. On
July 18, 1990, the Borough issued a stop work order after at
least one truck-load of construction debris was allegedly
deposited at the site without the necessary conditional use
permit. Likewise, the DEC issued a notice of violation on
July 27, 1990, stating that LMLC was not in compliance with
its permit and prohibiting the acceptance of any more waste
until the conditions of the permit were met.
7MSB Board of Adjustment and Appeals Resolution 91-01 (Aug.
8Alaska Statute 29.40.060 and MSB 15.38.230 provide that an
aggrieved party may appeal to the superior court a decision
by the BOAA to grant or deny a conditional use permit. Such
an appeal is "heard solely on the record established . . .
by the board of adjustment . . . ." AS 29.40.060(b).
9In cases where "the superior court acts as an intermediate
court of appeal, no deference is given to the lower court's
decision. Instead we independently scrutinize directly the
merits of the administrative determination." Tesoro Alaska
Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903
(Alaska 1987) (citations omitted).
10City and Borough of Juneau v. Breck, 706 P.2d 313, 315
11This question is one of statutory interpretation. Where,
as here, the interpretation of a statute does not require
the special expertise of the agency charged with
administering the statute, this court will exercise its
independent judgment to determine whether the agency has
complied with the statutory requirements. Alaska Survival
v. State, Dep't of Natural Resources, 723 P.2d 1281, 1288
12Donald G. Hagman, Urban Planning and Land Development
Control Law 42 (1971).
13See 1 Robert M. Anderson, American Law of Zoning 5.02, at
263 (2d ed. 1976) ("The notion that zoning regulations
should be imposed only in accordance with a comprehensive
plan is founded on the basic premise that zoning is a means
rather than an end. The legitimate function of a zoning
regulation is to implement a plan for the future development
of the community.").
14South Anchorage Concerned Coalition, Inc. v. Coffey, 862
P.2d 168, 174 (Alaska 1993); see also Roseta v. County of
Washington, 458 P.2d 405, 409 (Or. 1969) ("[M]any of the
evils in zoning practice can be ameliorated by a judicial
insistence upon the zoning board's compliance with the
statutory requirement that any changes in the zoning
ordinance be made `in accordance with a comprehensive
15When the words of a statute are clear and unambiguous,
their plain meaning will be given effect. See White v.
Alaska Ins. Guar. Ass'n, 592 P.2d 367, 369 (Alaska 1979).
16Additionally AS 29.35.180(a) requires that "[a] first or
second class borough shall provide for planning, platting,
and land use regulation in accordance with AS 29.40."
17Allen v. Flathead County, 601 P.2d 399, 401 (Mont. 1979);
see also Creative Displays, Inc. v. City of Florence, 602
S.W.2d 682 (Ky. 1980); Smith v. Skagit County, 453 P.2d 832
18723 P.2d 1281 (Alaska 1986).
19Id. at 1289.
20AS 38.04.065(b) lists eight substantive criteria which the
Commissioner of Natural Resources should consider in
adopting regional and site-specific land use plans.
21The superior court held without explanation, that the
language in AS 29.40.030-040 is directory rather than
mandatory. The Borough also makes this argument relying on
City of Yakutat v. Ryman, 654 P.2d 785 (Alaska 1982), where
this court held that a
state statute establishing a time by which municipalities
were to issue their tax assessments was directory and
therefore did not bar a "late" assessment. The court
considered three factors in determining that the statute was
directory rather than mandatory: (1) that the statutory
wording was affirmative rather than prohibitive; (2) that
the legislative intent was to create "guidelines for the
orderly conduct of public business;" and (3) that serious,
practical consequences would follow from a finding that the
statute was mandatory. Id. at 789-91.
Although the statutory command at issue in the
present case is an affirmative one, we believe AS 29.40.030
is mandatory. First, the Borough has provided no evidence
of any legislative intent that this statute was meant to be
directory. Second, "[t]he procedural steps required by the
state zoning enabling statutes usually are regarded as
mandatory." 1 Robert M. Anderson, American Law of Zoning
4.03, at 185 (1976).
22We do not hold that all zoning decisions made in the past
that were made prior to the adoption of a comprehensive plan
are invalid. For example, where the municipality has
subsequently adopted a comprehensive plan, and the
preexisting zoning ordinance rationally complies with that
plan, the landowner is not prejudiced and any defect is
cured. However, where a municipality attempts to enact
zoning regulations presently in the absence of a validly
enacted comprehensive plan, the action is unlawful. We need
not reach the question of what remedy or remedies might be
appropriate in such a case.
23This issue presents a mixed question of law and fact.
First, this court must answer the legal question of what
constitutes a sufficient comprehensive plan under AS
29.40.030. We must then address the factual issue of
whether or not Mat-Su's plan comports with this standard.
In addressing the first question we apply the reasonable
basis standard of review. The legal question of what
comprises a sufficient comprehensive plan requires an
evaluation of the specific planning needs of the
municipality. This judgment is within the sphere of
expertise of the Planning Commission and the BOAA and
therefore is entitled to considerable deference. South
Anchorage Concerned Coalition, 862 P.2d at 168 n.12; see
also infra notes 67-69 and accompanying text (discussing why
reasonable basis review is appropriate for Planning
As to our review of the BOAA's factual findings,
we apply the substantial evidence test. Substantial
evidence is "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Fields
v. Kodiak City Council, 628 P.2d 927, 932 (Alaska 1981).
24These were both enacted by ordinance. MSB Ordinance No. 85-
4 (Feb. 5, 1985); MSB Ordinance No. 84-61 (July 3, 1984).
25City planning is accomplished via a cooperative effort
between Mat-Su and the respective city with the final
comprehensive plan approved by the Mat-Su Borough Assembly.
The City of Houston plan was adopted by MSB Ordinance No. 81-
151 (June 1, 1982).
26MSB Ordinance No. 88-012 (Feb. 16, 1988).
27MSB Ordinance No. 86-015 (March 4, 1986).
28This illustration is meant to show an example of what is
sufficient under the statute, not what is necessary. The
determination of whether a borough's plan is "comprehensive"
is a factual one and therefore requires an examination of
the individual facts and circumstances in each case.
29See generally 3 Robert M. Anderson, American Law of Zoning
21.11, at 601-02 (2d ed. 1977).
31For example, the decision to encourage residential
development in a particular area of the municipality may
affect the placement of public facilities or the development
of a specific type of transportation system.
32This is a question of law which lies squarely within the
sphere of judicial competence. In such a case, courts do
not defer to an agency's interpretation, but instead apply
their own "independent judgment." Kjarstad v. State, 703
P.2d 1167, 1170 (Alaska 1985).
33AS 29.25.010(b) specifically states that "[t]his section
does not grant authority, but requires the governing body to
use ordinances in exercising certain of its powers."
38584 P.2d 1115 (Alaska 1978).
395 Eugene McQuillin, McQuillin Municipal Corporations
15.02, at 56 (3d ed. 1989); see also International Ass'n of
Firefighters Local 1596 v. City of Lawrence, 798 P.2d 960,
966 (Kan. App. 1990).
41660 P.2d 406 (Alaska 1982).
42Id. at 425.
43See, e.g., Jarvis Acres, Inc. v. Zoning Comm'n of E.
Hartford, 301 A.2d 244 (Conn. 1972) (notice was adequate
when published in two different newspapers when statute
required publication in a single newspaper on two different
days); Northern Operating Corp. v. Town of Ramapo, 259
N.E.2d 723 (N.Y. 1970).
44See Creative Displays, Inc. v. City of Florence, 602 S.W.2d
682 (Ky. 1980).
45Although this argument was not raised by the Borough,
"[t]his court . . . may affirm a judgment of the superior
court on different grounds than those advanced by the
superior court and even on grounds not raised by the parties
in the superior court." Native Village of Eyak v. GC
Contractors, 658 P.2d 756, 759 (Alaska 1983).
46MSB Ordinance 91-078, 3 (Aug. 6, 1991). The ordinance
states that a public hearing on this ordinance was held on
August 6, 1991.
475 Eugene McQuillin, McQuillin Municipal Corporations
16.12, at 194 (3d ed. 1989).
48163 N.W.2d 51 (Minn. 1968).
49Id. at 53; see also Friedman v. Goodman, 132 S.E.2d 60, 66
(Ga. 1963) (court upheld the adoption of a document in a
municipal ordinance by incorporation by reference where the
incorporated record was adequately identified, accessible to
members of the public, and the adopting ordinance gave
notice of this accessibility).
50This court reviews constitutional issues de novo and
applies its independent judgment. Arco Alaska, Inc. v.
State, 824 P.2d 708, 710 (Alaska 1992). We will adopt "the
rule of law most persuasive in light of precedent, reason,
and policy." Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
51LMLC cites a 1985 statement by the then Chairman of the
BOAA arguing that the ordinance applies to "every commercial
use in this Borough. Every gas station in this Borough
outside of a city, every airplane hangar, that's every shop,
every prefab place, every appliance sales place."
52Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)
(quoted in State v. O'Neill Investigations, Inc., 609 P.2d
520, 531 n.37 (Alaska 1980)).
53When a vague law reaches activity protected by the first
amendment, in addition to the due process concerns discussed
below, there is a concern that the law will unnecessarily
"chill" first amendment rights. See Laurence Tribe,
American Constitutional Law 12-31, at 1033-35 (2d ed.
1988) (discussing the distinction between these two lines of
54Grayned v. City of Rockford, 408 U.S. 104, 108-9 (1972)
55O'Neill, 609 P.2d at 531; see also Levshakoff v. State, 565
P.2d 504, 507-08 (Alaska 1977); Stock v. State, 526 P.2d 3,
7-8 (Alaska 1974).
56O'Neill, 609 P.2d at 531.
57Stock, 526 P.2d at 8.
58455 U.S. 489 (1982).
59Id. at 498-99 (emphasis added) (footnotes omitted) (quoted
in Storrs v. State Medical Bd., 664 P.2d 547, 549 (Alaska
60Williams v. State, Dep't of Revenue, 895 P.2d 99, 105
61In addition to civil penalties, MSB 17.60 does provide for
criminal penalties of up to $500 and 30 days in jail for
each offense. However, the primary enforcement mechanism is
the enforcement order which requires the land owner to cease
and desist from all activities contrary to terms of the
order. MSB 17.60.210.
62Summers v. Anchorage, 589 P.2d 863, 869 (Alaska 1979)
(quoting Levshakoff, 565 P.2d at 507).
63Williams, 895 P.2d at 105.
64LMLC also argues that because zoning ordinances are in
derogation of common-law property rights, the court should
strictly construe MSB 17.60 in favor of the property owner.
Mat-Su correctly points out that this court rejected this
minority rule in City and Borough of Juneau v. Thibodeau,
595 P.2d 626, 635 n.31 (Alaska 1979). Instead, the court
adopted the majority rule that "in construing zoning
ordinances, the same rules of construction are used as when
the courts are construing statutes of the legislature." Id.
65LMLC correctly notes, "In interpreting a zoning ordinance,
the trial court may consider the contemporaneous
construction of that ordinance by the public officials
charged with its administration." Corper v. City and County
of Denver, 536 P.2d 874, 879 (Colo. App. 1975), aff'd, 552
P.2d 13 (Colo. 1976). This is a specific application of a
general rule that an agency's contemporaneous administrative
construction is a valuable aid, but not conclusive, in
determining the meaning of a statute. Wien Air Alaska, Inc.
v. Dep't of Revenue, 647 P.2d 1087, 1090 (Alaska 1982).
66Alternatively, the Borough argues that because the
municipal landfill was in existence as of the date of
enactment of the conditional use ordinance, under MSB
17.60.200 its use would be "grandfathered" as a
nonconforming use. LMLC correctly points out in its reply
brief that under the ordinance's "existing nonconforming
use" provision, MSB 17.60.200(C) requires that the owner of
the property apply for a permit within 180 days of the
ordinance's enactment. Thus, even if the Borough would have
been entitled to such a permit, its failure to procure one
would put it in violation of MSB 17.60 if this ordinance
67South Anchorage Coalition, 862 P.2d at 173 n.12.
68In explaining why an agency's interpretation of its own
regulation is entitled to great deference, this court has
noted that the deferential "reasonable
basis" standard of review is appropriate
where a question of law implicates the
agency's expertise as to complex matters
or as to the formulation of fundamental
policy . . . . [W]here an agency
interprets its own regulation . . . a
deferential standard of review properly
recognizes that the agency is best able
to discern its intent in
promulgating the regulation at issue.
Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161
(Alaska 1982) (citations omitted).
Arguably, the same deference should not be given
to a Planning Commission because the regulations being
interpreted are enacted by the municipality's council rather
than the planning Commission. AS 29.40.040. However, the
Commission and the BOAA are the municipal bodies primarily
responsible for planning and zoning efforts. AS
29.40.020(b) (charging the Planning Commission with the
responsibility for recommending and administering both the
comprehensive plan and zoning regulations). In light of the
Commission's and BOAA's roles in the planning process, and
the expertise they develop in administering the
municipality's zoning ordinances, deference equal to that
accorded to an administrative agency is appropriate.
69Unemployment Compensation Comm'n of Alaska v. Aragon, 329
U.S 143, 153 (1946) (quoted in Pan American Petroleum Corp.
v. Shell Oil Co., 455 P.2d 12, 22 (Alaska 1969)).
70"Commercial" is defined in MSB 17.60.010(C) as "any
activity where goods or services are offered or provided for
sale or profit."
71See MSB 8.04.
72See 6 Patrick J. Rohan, Zoning and Land Use Controls