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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. or subject indices. Native Village of Eklutna v. Board of Adjustment for Municipality of Anchorage (2/4/00) sp-5237

Native Village of Eklutna v. Board of Adjustment for Municipality of Anchorage (2/4/00) sp-5237

     Notice:  This opinion is subject to 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, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


NATIVE VILLAGE OF EKLUTNA,    )
                              )    Supreme Court No. S-8695
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-4795 CI
                              )
THE BOARD OF ADJUSTMENT FOR   )    O P I N I O N
THE MUNICIPALITY OF ANCHORAGE,)
and NATIONAL BANK OF ALASKA,  )
                              )
             Appellees.       )    [No. 5237 - February 4, 2000]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                 Sigurd E. Murphy, Judge pro tem.


          Appearances:  Sara E. Heideman, Hedland,
Brennan, Heideman & Cooke, Anchorage, for Appellant.  Dennis A.
Wheeler, Assistant Municipal Attorney, Mary K. Hughes, Municipal
Attorney, Anchorage, for Appellee Municipality of Anchorage, Board
of Adjustment.  Gregory L. Youngmun, DeLisio, Moran, Geraghty &
Zobel, Anchorage, for Appellee National Bank of Alaska.


          Before:   Matthews, Chief Justice, Fabe,
Bryner, and Carpeneti, Justices.  [Eastaugh, Justice, not
participating.]


          MATTHEWS, Chief Justice.      






I.   INTRODUCTION
          This case concerns the issuance by the Planning and
Zoning Commission of a conditional use permit for a granite mining
operation to the National Bank of Alaska.  The decision granting
the permit is challenged by the Native Village of Eklutna.  Because
the Commission failed to consider properly the potential historical
significance of the area, we vacate the decision of the Board of
Adjustment and remand for further proceedings consistent with this
opinion.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          National Bank of Alaska (Bank) owns 160 acres of land
north of the Native Village of Eklutna (Eklutna).  Since March 1995
this property has been zoned I-2 SL (heavy industrial, special
limitations).  The special limitations of the zoning included a
requirement that a master plan for development of the site
(including, inter alia, a traffic impact analysis and
identification of critical habitat/wetland areas) be submitted to
the Planning and Zoning Commission along with any application for
a conditional use permit. 
          The Bank's property is located in the Chugiak-Eagle River
Comprehensive Plan (the "Plan") area south of Knik Arm and north of
the Glenn Highway and the village of Eklutna.  The Plan, required
by municipal ordinance, dictated that the Municipality develop and
implement a long-range plan concerning the physical development of
the Municipality.  Under the Plan, the Bank property was classified
for industrial use because of the existing quarry next to the
property. [Fn. 1]  The southwestern and western boundaries of the
property border a parcel owned by the Alaska Railroad Corporation,
and the Alaska Railroad tracks separate the Bank property from the
Eklutna village to the south.  The Alaska Railroad has used its
property as an industrial granite quarry site since the 1940s.  The
Bank property is accessible by a rail spur which runs past the face
of the quarry.
          The Bank proposes to conduct a granite mining operation
in the southwest corner of the property, on the Bank-owned side of
the same quarry that is presently operated by the Alaska Railroad.
Over the next twenty to twenty-five years, the Bank intends to
expand the operation northward to the northwest corner of the
property.  The Bank currently uses the opposite end of the
property, in the northeast corner, as a private recreation area for
picnics and social gatherings.
          The southwesterly portion of the Bank's property
encompasses one-half of the larger of two hills.  Eklutna claims
that these two hills possess great cultural significance as the
objects for which the village is named, according to Dena'ina
Athabascan tradition.  Both sides agree that the Bank's proposed
mining operation will destroy that portion of the larger hill
located on the Bank's property.
     B.   Proceedings
          In July 1995 the Bank filed an application for a
conditional use permit to conduct a granite mining operation on the
southwesterly portion of the property.  With the application, the
Bank submitted a "Master Plan for Development of NBA's Eklutna
Property."
          The application and master plan were reviewed by a number
of state and local agencies, most of which had no comment and a few
of which suggested revisions or conditions.  Ultimately, the
planning staff of the Municipality of Anchorage Department of
Community Planning and Development recommended that the Commission
approve the master plan and conditional use permit, subject to some
conditions.
          The Planning and Zoning Commission held a public hearing
on November 6, 1995.  The Commission approved the master plan, but
initially denied the conditional use permit.  At its next meeting,
in December 1995, the Commission voted to reconsider its denial of
the permit as well as its approval of the master plan, and the
matter was rescheduled for February 1996.  Sometime between the
November and December meetings, the Bank supplemented the permit
application with an archeological report ("the Hart Crowser
Report"), and then submitted wetlands, wildlife, and habitat
studies between the December and February meetings.  In January
1996 the Bank also prepared and submitted a traffic impact
analysis.  In February the planning staff presented another report
to the Commission, again recommending that the Commission approve
the master plan and conditional use permit, with conditions.  This
report contained a section listing issues that the Bank had to
resolve "[p]rior to the conditional use becoming effective,"
including an "archaeological survey [to] be submitted for review
and approval by the State Historic Preservation Officer, if
required."
          On February 12 the Commission conducted another public
hearing.  At the conclusion of this meeting, the Commission
approved the master site plan and approved the conditional use
permit, subject to conditions of approval.  These conditions of
approval were identical to the conditions of approval listed in the
report of the planning staff.
          Eklutna appealed to the Anchorage Board of Adjustment,
which affirmed the Commission's decision.  The Board decided that
the findings of the Commission were "supported by substantial
evidence in the record,"and made additional findings of fact in
support of the Commission's decision. 
          Eklutna then appealed to the superior court, which
affirmed the decision of the Board.  The court held that there was
substantial evidence to support the Board's determination that the
conditional use would be compatible with existing and planned land
uses in the surrounding neighborhood, as required by Anchorage
Municipal Code (AMC) 21.50.020(C), and that the traffic impact
analysis requirements of AMC 21.50.020(D) were met.  The court also
held that substantial evidence supported the Board's decision that
the special limitations of Anchorage Ordinance (AO) 94-169(aa) were
satisfied, including the identification of habitat and wetlands
areas.  Finally, the court found that substantial evidence
supported the Board's conclusion that no cultural resources would
be adversely affected by the permit activity, though the
archeological report prepared by Hart Crowser on behalf of the Bank
"constituted the minimal information necessary for the Board to
make its determinations in compliance with the law."  The superior
court refused to reach Eklutna's argument that an archeological
survey of the site must be reviewed by the State Historic
Preservation Officer prior to the conditional use permit becoming
effective, on the ground that Eklutna had waived the issue by
failing to specifically include it in the statement of points on
appeal.
          Eklutna appeals to this court.
III. STANDARD OF REVIEW
          South Anchorage Concerned Coalition, Inc. v. Coffey [Fn.
2] establishes the standard of review applicable to the Board of
Adjustment decision in the present case.  "[J]udicial review of
zoning board decisions is narrow and . . . a presumption of
validity is accorded those decisions."[Fn. 3]  This court will
uphold the Board's decision as long as it is, "in the light of the
whole record, . . . supported by substantial evidence."[Fn. 4]  In
a case that involves a zoning board's interpretation of zoning
ordinances and planning documents, this court will give such
interpretations "considerable deference."[Fn. 5]
          With regard to the superior court's decision, this court
will "independently review the record because the superior court
was acting as an intermediate appellate court with respect to the
Commission's decision."[Fn. 6]
IV.  DISCUSSION
     A.   Were the Findings of the Board of Adjustment That No
Cultural Resources Would Be Affected by the Quarry Supported by
Substantial Evidence?

          This is the most contested issue in the case.  Pursuant
to AMC 21.50.020(A), "[t]he authority hearing a conditional use
application may approve the application only if it finds that the
conditional use . . . [f]urthers the goals and policies of the
comprehensive development plan and conforms to the comprehensive
development plan."  The Municipality of Anchorage is required by AS
29.40.030 to adopt such a comprehensive development plan and
implement land use regulations in accordance with the plan.  The
Chugiak-Eagle River Comprehensive Plan is incorporated by reference
into the Anchorage Comprehensive Plan. [Fn. 7]  The "Guidelines for
Growth"within the Comprehensive Plan guide developers to consider
historic and archaeological resources. [Fn. 8]  Specifically, the
Development Plan sets a goal of preserving "historic and
archeological sites determined to have local and/or State
significance"and encourages "the preservation of historic and
archeological structures on site."[Fn. 9]  Therefore, when
evaluating a conditional use permit, the Commission must consider
the archeological and historic significance of the site.
          The Commission found, and the Board sustained a finding,
that "no cultural resources will be adversely affected by the
quarry."  (Emphasis added.)  Eklutna argues that this finding was
unsupported by substantial evidence.
          The only evidence produced by the Bank to support this
conclusion was a five-page "Cultural Resources Services Letter
Report"written by Hart Crowser.  According to the report, Hart
Crowser reviewed publicly available resources to acquire an
understanding of known historic properties and events and performed
a reconnaissance-level archaeological survey of the proposed quarry
site.  The report concludes that no significant effects to cultural
resources would result from the proposed undertaking and recommends
no further reconnaissance surveys.  Nonetheless, the Hart Crowser
Report closes with a general warning "that quarry workers be made
aware of the historic setting within which the work is being
performed and cautioned regarding the need to minimize potential
adverse effects should archaeological or historic materials be
encountered in a subsurface context."
          Eklutna argues that the study is inadequate, as it
"consisted merely of a [one-day] walk of the property, with limited
subsurface shoveling"on a day when the ground was frozen.  During
the public hearings before the Commission, at least two witnesses
testified as to why the Hart Crowser Report is inconclusive.  Anna
Lowrey, an Eklutna Village resident, pointed out that the shovel
testing conducted during the archeological survey was limited and
indicated that prehistoric Indian habitation sites likely exist in
the granite hills.  Gary Harrison, chairman of Chickaloon Village
and a traditional Athabascan chief, explained that the site is
traditional native hunting land.
          Ellen Bielawski, Ph.D., offered the most comprehensive
critique of the Hart Crowser study. [Fn. 10]  Dr. Bielawski
underscored that local and indigenous knowledge was absent from the
assessment and that the ground was frozen when the shovel testing
took place. Bielawski further criticized Hart Crowser's method,
including the paucity of literature reviewed in aid of the
assessment.
          Other evidence in the record shows that the area is
culturally significant.  In his testimony and documentary submis-

sions, Lee Stephan, CEO and vice president of the Traditional
Council of Eklutna, explained that Eklutna is named for the granite
hills in question.  In the native Athabascan language, the
village's name refers to "two knobs and a river."  Others confirmed
this.  Anna Lowrey found it "unthinkable that the hills that
give . . . Eklutna . . . its name could be mined for granite."
Nancy Yaw Davis, Ph.D., a National Bank of Alaska shareholder who
conducted a study of Eklutna for her master's thesis, found it
startling that "one of the hills that the community is named for
may be quarried away."  In her letter dated November 6, 1995, Dr.
Davis writes, "If that happens, then Eklutna will have to be
renamed; it will no longer be 'Place of plural objects', but only
one.  One hill quarried; one hill standing."  Furthermore, village
residents Lois Munson and Michael and Anna Curtis and
representatives of the Saint Nicholas Russian-Orthodox Church
expressed concern that the proposed quarry would damage existing
historic, cultural, and religious resources. 
          In light of this evidence, we believe that the Board's
finding that "no cultural resources will be adversely affected"was
unsupported by substantial evidence in light of the whole record. 
The evidence unquestionably established that some cultural
resources will be adversely affected by the proposed quarry.  The
historical value of the twin hills that gave Eklutna its name is a
cultural factor that should have been considered.
          On remand, the Commission should determine the extent to
which these resources would be adversely affected and, with these
adverse effects in mind, whether the conditional use permit
otherwise "[f]urthers the goals and policies of the comprehensive
development plan and conforms to the comprehensive development
plan."[Fn. 11]  In support of its findings, the Board identified
the goal and policy of developing "an industrial use to support the
economic base of the Anchorage area."  However, neither the Board
nor the Commission considered the goal and policy outlined by the
Comprehensive Plan for preserving historic and archaeological
resources.  Accordingly, the Commission should first determine the
extent to which cultural resources would be adversely affected by
the proposed quarry.  Then, the Commission should weigh the goal of
preserving historic and archeological resources against the goal of
supporting an economic base for the community.  If the adverse
effects to archaeological and historic resources outweigh the
economic advantage gained by the proposed conditional use, the
Commission should deny the conditional use permit.  If the economic
gains outweigh the cultural losses, then the Board should grant the
permit.
     B.   Did the Superior Court Err in Refusing to Supplement the
Record on Appeal?

          On November 17, 1997, during the appeal to the superior
court, Eklutna moved to supplement the record by adding three
additional documents: the Bielawski "comment"(a response to the
Hart Crowser cultural study); the Lamoreaux "pilot study"
(regarding the wildlife and habitat study prepared by the Bank);
and the Fall Report, an ethnographic study of the region prepared
in September 1997 under the sponsorship of the Railroad. [Fn. 12] 
The first two documents had been considered by the Board, though
the Board had indicated that it would not normally address
materials "not raised in the record below."  The third (the Fall
Report) did not exist at the time of the proceedings before the
Commission or the Board.
          The superior court granted Eklutna's motion as to the
first two documents, but denied it as to the third.  Eklutna
contends that the superior court had authority to supplement the
record under Alaska Appellate Rule 609, [Fn. 13] and that not to
have done so was error because the report contained "critical
information." 
          Because we remand this case for lack of substantial
evidence, we need not decide whether the superior court should have
considered the Fall Report.  Under the Anchorage Municipal Code,
"Appeals alleging new evidence or changed circumstances shall . . .
be remanded forthwith by the municipal clerk to the lower
administrative body, which shall determine whether to rehear the
matter."[Fn. 14]  As noted above, the Commission will rehear this
matter in order to weigh the goals of economic gain versus cultural
preservation.  On rehearing, the Commission should, in the exercise
of its discretion under this provision, decide whether to admit the
Fall Report and any other newly offered evidence.  
     C.   Did the Board of Adjustment Believe that an Archeological
Survey, Reviewed by the State Historic Preservation Officer, was
Required Before the Permit Would Become Effective?

          Under AMC 21.50.070(C), the Commission "shall attach such
conditions to the approval of a natural resource extraction
conditional use as it finds are necessary."  On recommendation by
the planning staff, the Commission attached several conditions to
its approval of the Bank's conditional use permit.  Among these was
a condition that an "archaeological survey be submitted for review
and approval by the State Historic Preservation Officer, if
required."[Fn. 15]  Affirming the Commission's decision, the Board
slightly modified this condition, saying: "prior to the conditional
use being effective, . . . there be [sic] an archaeological survey
of the site, reviewed by the State Historic Preservation Officer."
[Fn. 16] 
          Eklutna claims that this language means that the Bank
cannot get a permit until such a survey is reviewed and approved by
the Preservation Officer.
          The Bank, citing Appellate Rule 204(e), counters that
Eklutna waived this argument by failing to explicitly raise it in
the points on appeal.  However, Eklutna is correct when it argues
that "[t]he relevant question is not whether an issue is stated
verbatim in a statement of points on appeal, but rather whether the
court and the opposing party are fully informed as to the matter at
issue."  Appellate Rule 204(e) does not necessarily preclude this
court from hearing points not raised in the points on appeal. 
Rather, Appellate Rule 204(e) provides, "The appellate court will
consider only points included in the statement [of points], and
points that the court can address effectively without reviewing
untranscribed portions of the electronic record."  (Emphasis
added.)  In the present case, all relevant portions of the
electronic record have been transcribed.  Furthermore, Eklutna
raised this issue before the superior court, and the issue was
fully briefed before this court. [Fn. 17]  The appellees and this
court are sufficiently informed and Appellate Rule 204(e) does not
preclude review. 
          Alternatively, the Bank claims that it submitted such a
survey to the Preservation Officer, making Eklutna's claim moot.
But no evidence has been presented that such a survey has been
submitted.  In any case, we need not decide this issue because, as
the Bank argues, this particular challenge is untimely.  Eklutna's
suit challenges the authority of the Board to make the decision,
not whether the Bank complied with the decision.  If, after remand,
a permit is issued with this condition and if then the Bank fails
to comply with the condition, Eklutna may seek redress.  But
currently non-compliance with the condition is not before us.
     D.   Were the Board's Other Findings Supported by Substantial
Evidence?

          Eklutna challenges the Board's decision that the Bank's
proposed conditional use complies with AMC 21.50.020(C) [Fn. 18]
and (D). [Fn. 19]  Eklutna contends that a rock quarry, "with its
accompanying blasting, dust, truck traffic and aesthetic result"is
fundamentally incompatible with residential neighborhoods.  The
Board, however, made specific findings of fact addressing this
issue and these findings are supported by substantial evidence.
[Fn. 20]
          Eklutna also challenges the sufficiency of the habitat
and wetlands studies and of the traffic impact analysis submitted
to the Commission by the Bank.  These studies were required by the
special limitations imposed by AO 94-169(aa). Substantial evidence
supports the findings of the Commission and the Board that the Bank
satisfied these requirements. [Fn. 21]
V.   CONCLUSION
          Because the Board's decision regarding the cultural
resources affected by the permit was not supported by substantial
evidence, we VACATE the Board's decision and REMAND this case for
further consideration.  On remand, the Commission has discretion to
consider the Fall Report and any other evidence that has come to
light since the prior proceedings. 


                            FOOTNOTES


Footnote 1:

     See Anchorage Ordinance 94-169(aa).


Footnote 2:

     862 P.2d 168 (Alaska 1993).


Footnote 3:

     Id. at 173.


Footnote 4:

     Id.


Footnote 5:

     Id. at 173 n.12.


Footnote 6:

     Id. at 173.


Footnote 7:

     See AMC 21.05.030(C).


Footnote 8:

     Chugiak-Eagle River Comprehensive Plan, AO 92-133 at  114-15
(1993).


Footnote 9:

     Id. at 114.


Footnote 10:

     Although Bielawski's comment was not part of the Commission
record, both the Board of Adjustment and the superior court
considered the comment.  Accordingly, we include the Bielawski
comment as part of our review of the record.


Footnote 11:

     AMC 21.50.020(A).


Footnote 12:

     The Fall Report is based on interviews with residents of
Eklutna, and contains a great deal of information about the
significance of the two hills as the source of Eklutna's name.


Footnote 13:

     Appellate Rule 609 states that the superior court "may in its
discretion grant a trial de novo in whole or in part."  See also 
Southwest Marine, Inc. v. State, Dep't of Transp. and Pub.
Facilities, 941 P.2d 166, 172 (Alaska 1997) ("When the superior
court acts as an appellate court, it may decide to supplement the
record or order a de novo examination of the record at its
discretion.").


Footnote 14:

     AMC 21.30.040.


Footnote 15:

     The condition imposed by the Commission apparently only
required that the archaeological survey be submitted if otherwise
required by the Preservation Officer or any other administrative
agency. 


Footnote 16:

     The parties do not challenge the appropriateness of this
condition or the Board's authority to modify the condition imposed
by the Commission.


Footnote 17:

     Cf. Donnybrook Building Supply Co. v. Alaska Nat'l Bank of the
North, 736 P.2d 1147, 1149 n.6 (Alaska 1987) ("Although [the
appellant] did not assert as error the trial court's decision on
this issue in its Statement of Points on Appeal as required by
Alaska R. App. P. 210(e), we choose to address it because the issue
was raised before the trial court and was fully briefed by both
parties.").


Footnote 18:

     AMC 21.50.020(C) requires a proposed conditional use to be
"compatible with existing and planned land uses in the surrounding
neighborhood and with the intent of its use district."


Footnote 19:

     AMC 21.50.020(D) requires that the proposed use "not have a
permanent negative impact on the items listed in this subsection
substantially greater than that anticipated from permitted
development."


Footnote 20:

     The Board found that the negative impact of the proposed
conditional use would not necessarily extend beyond the property
line or exceed other permissible heavy industrial uses and that the
special limitations on quarry activity imposed by the Commission
"tip the balance in favor of finding that this use will be
compatible with the remainder of the I-2 zoned land."


Footnote 21:

     To support its findings regarding the habitat and wetlands
study, the Commission relied on the Resource Atlas, maps, and the
Bank's summary of the material, in addition to analysis provided by
the planning staff.  Traffic impact was discussed at the committee
hearings and several agencies reviewed and revised the suggested
traffic plan.