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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cabana v Kenai Peninsula Borough (4/27/01) sp-5398

Cabana v Kenai Peninsula Borough (4/27/01) sp-5398

     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.


and NANCY HILLSTRAND,         )
                              )    Supreme Court Nos. S-9377/9497
          Appellants/Cross-   )
          Appellees,          )
                              )    Superior Court No.
     v.                       )    3KN-99-470 CI
ASSEMBLY,                     )
          Appellees/Cross-    )    [No. 5398 - April 27, 2001]
          Appellants.         )

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
                     Harold M. Brown, Judge.

          Appearances: Robert C. Erwin, Roberta C.
Erwin, Erwin & Erwin, LLC, Anchorage, for Appellants/Cross-
Appellees.  Holly B. Montague, Assistant Borough Attorney, Colette
G. Thompson, Borough Attorney, Soldotna, for Appellees/Cross-

          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  

          MATTHEWS, Justice.

          After Doris Cabana appealed the Kenai Peninsula Borough
Assembly's decision to classify a parcel of municipal land as light
industrial, Superior Court Judge Harold Brown held that the Borough
Assembly's decision was a legislative one and so dismissed Cabana's
appeal on jurisdictional grounds.  Judge Brown found that Cabana
was a public interest litigant, however, and denied the Borough's
motion for attorney's fees on this basis.  Cabana appeals, arguing
that the Borough Assembly's classification, like a small-scale
rezoning, was subject to appeal as a quasi-judicial decision.  The
Borough cross-appeals the denial of its motion for attorney's fees. 
Because small-scale rezonings are treated as legislative decisions
under Alaska law, and because the evidence supports the superior
court's finding that Cabana was a public interest litigant, we
affirm Judge Brown's decisions.
          Clif and Cheryl Shafer owned a twenty-acre parcel of land
in Anchor Point (the "Shafer parcel").  Approximately half of the
Shafer parcel was wetlands, and 64 of 105 parcels within a half-
mile radius of the parcel were residentially developed.  Shafer's
attempts to use his parcel for gravel excavation were thwarted by
his unwillingness, for financial reasons, to comply with an
environmental review. 
          The Kenai Peninsula Borough owned a forty-acre parcel of
land in Homer (the "Homer parcel").  The Homer parcel was adjacent
to an asphalt plant, the Borough landfill, and a state Department
of Transportation maintenance yard.  Approximately one-third of the
Homer parcel was wetlands, and only thirteen of the fifty-five
parcels within a half-mile radius of the parcel were residentially
          Shafer approached the Borough and proposed an exchange of
the Shafer parcel for the Homer parcel, intending to use the Homer
parcel to store and process gravel to be sold to customers in the
Homer area.  Under the Kenai Peninsula Borough Code, land owned by
the Borough must be classified before it can be exchanged. [Fn. 1] 
The instrument conveying the land to a private party, in turn, must
restrict the use of the land to the uses permitted under that
classification. [Fn. 2]  When the classification or reclassifica-

tion of land is initiated by a private party, the code requires the
planning commission to hold a public hearing on the proposed
classification, and also requires notice to be mailed to all
landowners or leaseholders of land within a half-mile radius of the
affected parcel. [Fn. 3]
          The Borough asserts that it sent notice to all landowners
and leaseholders of record within a half-mile radius of the Homer
parcel.  Doris Cabana, however, alleges that she is an owner or
leaseholder of property within a half-mile of the Homer parcel, but
did not receive notice of the proposed classification.  The Borough
Planning Commission held a public hearing on the proposed
classification, and eventually recommended a light industrial
classification for the Homer parcel with a variance permitting
material stockpiling and related activities. 
          The Kenai Peninsula Borough Assembly then held a public
hearing on the proposed classification.  Despite some opposition to
the classification and exchange, the Borough passed a resolution
classifying the Homer parcel as light industrial.  The Borough also
passed an ordinance authorizing the exchange of the Homer parcel
for the Shafer parcel.
          Cabana, joined by Viola Jerrell and Nancy Hillstrand
(collectively "Cabana"), appealed both the Borough's resolution
classifying the Homer parcel, and the Borough's ordinance
exchanging the parcel, to the superior court.  In the appeal,
Cabana argued that the Borough had violated various procedural and
statutory requirements relating to the classification and exchange
of Borough property, and that the classification and exchange
involved unlawful "spot zoning."  Cabana later filed an original
action in superior court challenging the resolution and ordinance
on the same grounds. 
          The Borough moved to dismiss Cabana's appeal, arguing
that legislative actions like the Borough's resolution and
ordinance were properly challenged by means of an original action
rather than an appeal.  The superior court agreed, and dismissed
Cabana's appeal for lack of jurisdiction on September 17, 1999. 
The superior court noted that its order dismissing Cabana's appeal
was not intended to affect Cabana's original action in any way.  On
October 13, 1999, Cabana appealed the superior court's dismissal of
her appeal.
          On October 5, 1999, the Borough moved for an award of
$1,317.90 in attorney's fees.  In an order distributed on November
3, 1999, the superior court found that Cabana was a public interest
litigant and denied the Borough's motion for attorney's fees.  The
Borough moved for reconsideration of that order, and the superior
court denied the Borough's motion for reconsideration in an order
distributed on November 30, 1999.  The Borough filed its appeal of
the superior court's denial of reconsideration of its motion for
attorney's fees on December 30, 1999. 
          In deciding questions of law, this court will "adopt the
rule of law that is most persuasive in light of precedent, reason,
and policy." [Fn. 4]  This court reviews the superior court's
determination of public interest litigant status and the award of
attorney's fees only for abuse of discretion. [Fn. 5]  
     A.   The Classification of Municipal Land, like Small-Scale
Rezonings, Involves a Legislative Rather than Quasi-Judicial

          Cabana argues that the Borough Assembly's classification
of the Homer parcel was a quasi-judicial proceeding, because the
classification of a single parcel of municipal land is similar to
a small-scale rezoning, and small-scale rezonings are quasi-
judicial proceedings. [Fn. 6]  Cabana's argument must fail,
however, not only because the classification of municipal land is
unlike a small-scale rezoning, but because this court has
previously held that small-scale rezonings are legislative -- not
quasi-judicial -- proceedings.   
          As a general matter, "[w]henever an entity which normally
acts as a legislative body applies general policy to particular
persons in their private capacities, instead of passing on general
policy or the rights of individuals in the abstract, it is
functioning [in a quasi-judicial capacity]." [Fn. 7]  The
classification of municipal land is less likely to be a quasi-
judicial proceeding than would be a small-scale rezoning, because
classification of public land does not immediately and directly
affect the rights of a particular, private landowner.  
          Courts in some other jurisdictions have held that small-
scale rezonings should be treated as quasi-judicial proceedings.
[Fn. 8] But we have chosen instead to treat small-scale rezonings
as legislative decisions, [Fn. 9] explicitly defining "spot zoning"
as "the legal term of art for a zoning decision which affects a
small parcel of land and which is found to be an arbitrary exercise
of legislative power." [Fn. 10]  Just as the act of spot zoning is
a legislative act, the decision to spot zone is a legislative
          Even if Cabana were correct that the classification of a
single parcel of municipal land resembles a small-scale rezoning,
this court's precedent compels the conclusion that classification
of municipal land, like small-scale rezoning, be treated as a
legislative decision.  Because the decision of a legislative body
is subject to review by appeal only where the decision is a quasi-
judicial one, [Fn. 11] the superior court correctly dismissed
Cabana's appeal. [Fn. 12]
     B.   The Superior Court Did Not Abuse Its Discretion in
Finding that Cabana Was a Public Interest Litigant.

          The Borough argues that the superior court erred in
finding that Cabana was a public interest litigant, contending that
Cabana satisfies none of the four criteria for public interest
litigant status. [Fn. 13]  Our review of the evidence convinces us
that the trial judge did not abuse his discretion in concluding
that Cabana was a public interest litigant. 
          This court has named four criteria for identifying a
public interest litigant: 
          (1)  Is the case designed to effectuate strong
public policies? 

          (2)  If the plaintiff succeeds will numerous
people receive benefits from the lawsuit? 

          (3)  Can only a private party have been
expected to bring the suit? 

          (4)  Would the purported public interest
litigant have sufficient economic incentive to file suit even if
the action involved only narrow issues lacking general importance?[[Fn. 14]]

The party claiming public interest litigant status carries the
burden of satisfying all four criteria. [Fn. 15]
          The trial judge could reasonably have found that Cabana's
opposition to the Borough's classification and exchange of the
Homer parcel was meant to promote a number of important public
policies:  (1) protecting the parcel's wetlands; (2) avoiding "spot
zoning" or, at the least, "spot classification" in the absence of
a comprehensive plan; (3) requiring the Borough Assembly to obey
procedural requirements in its disposal of Borough land; and (4)
resisting a statutorily-prohibited "give away" of Borough property.
All four of these aims are akin to those this court has previously
recognized as serving important public interests. [Fn. 16]
          The Borough does not contest the strong public interest
in environmental protection and governmental accountability, but
instead argues only that because the challenged classification was
not in fact found to be illegal "spot zoning," Cabana did not
advance a strong public policy against spot zoning by pursuing her
appeal.  But while frivolous claims preclude public interest
litigant status, [Fn. 17] the Borough does not contend that Cabana
litigated her appeal on frivolous legal grounds.  As the public
interest litigant exception is meant in part to protect losing
litigants, the fact that Cabana failed to prove that "spot
classification" is akin to "spot zoning" cannot in itself defeat
her claim of public interest litigant status.  As it was reasonably
debatable that "spot classification" should be treated as a quasi-
judicial decision, and the Borough did not contest the public
interest in environmental protection and governmental
accountability, the trial judge did not abuse his discretion in
finding that Cabana's appeal was designed to effectuate strong
public policies.
          The Borough also contends that Cabana's appeal, even if
successful, would benefit only a small number of people, as there
are only a small number of residential properties close to the
Homer parcel.  But there was evidence in the record that
classification of the parcel for light industrial use would not
only harm the owners and inhabitants of nearby residential
properties, but would also negatively impact the natural
environment and the tourist trade of the area as a whole.
          The Borough further contends that private parties were
not the only ones who could have been expected to bring a lawsuit,
suggesting that the state's ownership of a neighboring parcel might
have induced it to oppose the Borough Assembly's action.  The
state's use of its own land to store gravel, however, makes it
markedly unlikely that the state would oppose the use of the Homer
parcel for similar purposes.  The publicly owned land near the
parcel that is not owned by the state is owned by the Borough,
which obviously could not be expected to sue itself.  Although the
Borough suggests that the City of Homer had the power to bring a
lawsuit, the fact that the City of Homer did not own property
within a half mile of the Homer parcel meant that it lacked
standing to object to the deficiencies in notice given to
neighboring landowners like Cabana. 
          Finally, the Borough argues that the three cross-
appellees' interest in the land they owned near the Homer parcel
gave them a sufficient economic incentive to file suit as non-
public interest litigants.  In Alaska Survival v. State, Department
of Natural Resources, however, we held that a "personal" interest
in the natural character of a parcel of land does not amount to the
kind of substantial economic interest sufficient to bar a litigant
from qualifying as a public interest plaintiff. [Fn. 18]  To the
extent that cross-appellees mentioned their own personal concerns
in opposing the classification of the land as light industrial,
Cabana also emphasized the potential health risks of the increase
in dust and noise; Jerrell also highlighted the likelihood of
pollution and the effects of the classification on the parcel's
wetlands; and Hillstrand, while expressing a concern about her
plans to develop her land as view property, also indicated a
concern for the "character" of the area.  The trial judge thus
would have acted within his discretion in viewing the concerns of
the three cross-appellees as more akin to a "personal" interest in
the natural character of the Homer parcel than to an economic
interest in their own properties.
          Because there is substantial evidence that Cabana
satisfied all four criteria of this court's test for public
interest litigant status, the superior court did not abuse its
discretion in denying the Borough an award of attorney's fees.
          Because the classification of Borough land is not a
quasi-judicial proceeding, we AFFIRM the superior court's dismissal
of Cabana's appeal.  Because the superior court was within its
discretion in finding that Cabana was a public interest litigant,
we AFFIRM the superior court's denial of attorney's fees to the


Footnote 1:

     See Kenai Peninsula Borough Code (KPBC) sec. 17.10.090.

Footnote 2:

     See KPBC sec. 17.10.130(D).

Footnote 3:

     See KPBC sec. 17.10.080(H),(I).

Footnote 4:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

Footnote 5:

     See Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816, 821
(Alaska 1997).

Footnote 6:

     On appeal, Cabana has apparently abandoned her earlier
contention that the Borough Assembly's exchange of the Homer parcel
(once classified) for the Shafer parcel was a quasi-judicial
proceeding.  Accordingly, this point will not be considered on
appeal.  See Adamson v. University of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991).

Footnote 7:

     Kollodge v. State, 757 P.2d 1028, 1033 (Alaska 1988) (quoting
Ballard v. Stich, 628 P.2d 918, 920 (Alaska 1981)).

Footnote 8:

     See, e.g., Board of County Comm'rs v. Snyder, 627 So. 2d 469,
474 (Fla. 1993).

Footnote 9:

     See Balough v. Fairbanks North Star Borough, 995 P.2d 245, 249
(Alaska 2000) (holding the rezoning of 75 acres on the north side
of a single rural road to be a legislative decision); Griswold v.
City of Homer, 925 P.2d 1015, 1019 n.3 (Alaska 1996) (describing
City Council's ordinance amending the zoning of 7.5-acre parcel of
land in Homer's 400-acre Central Business District as legislative

Footnote 10:

     Griswold, 925 P.2d at 1020 n.6 (emphasis added).

Footnote 11:

     See 4 Kenneth H. Young, Anderson's American Law of Zoning sec.
27.06 (4th ed. 1997) (noting that legislative decisions are
properly challenged through a direct action).

Footnote 12:

     As the superior court noted, appellants are still able to
obtain review of the merits of the Borough Assembly's decision
through their separately filed, and ongoing, original action. 

Footnote 13:

     The parties assume that the Borough is entitled to attorney's
fees as a matter of course if Cabana is not a public interest
litigant.  This assumption may not be well founded as this appeal
was dismissed and Appellate Rule 508 distinguishes between cases on
appeal terminated by dismissal and those terminated by affirmance
or reversal.  As to dismissed cases "costs shall not be allowed
. . . unless otherwise ordered by the court."  Alaska R. App. P.
508(a).  But in cases affirmed or reversed "costs shall be allowed
. . . unless otherwise ordered by the court."  Alaska R. App. P.
508(b) and (c).  In view of our decision that the superior court
did not err in concluding that Cabana was a public interest
litigant, and thus fees should not be awarded against her, it is
not necessary to explore further in this case the meaning of
Appellate Rule 508(a).

Footnote 14:

     Citizens Coalition for Tort Reform, Inc. v. McAlpine, 810 P.2d
162, 171 (Alaska 1991) (quoting Anchorage Daily News v. Anchorage
Sch. Dist., 803 P.2d 402, 404 (Alaska 1990)).

Footnote 15:

     See id.

Footnote 16:

     See Griswold v. City of Homer, 925 P.2d 1015, 1029-30 (Alaska
1996) (holding that a suit challenging alleged spot zoning served
to vindicate the strong public policy of ensuring that zoning
ordinances are not arbitrary or capricious); Alaska Survival v.
State, Dep't of Natural Resources, 723 P.2d 1281, 1292 (Alaska
1986) (holding that ensuring that an agency follows proper
procedures, and fulfills statutory requirements that its decisions
be in the best interests of the state, represents an important
effectuation of public policy); Southeast Alaska Conservation
Council, Inc. v. State, 665 P.2d 544, 553-54 (Alaska 1983) (holding
that the protection of state natural resources vindicates an
important public interest); Anchorage v. McCabe, 568 P.2d 986, 989
(Alaska 1977) (noting that both parties recognized homeowners
challenging a special exception to zoning that would permit high
rise development to be public interest litigants).

Footnote 17:

     See Eyak Traditional Elders Council v. Sherstone, Inc., 904
P.2d 420, 426-27 (Alaska 1995).

Footnote 18:

     723 P.2d at 1292.