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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Municipality of Anchorage v. Suzuki (02/08/2002) sp-5533

Municipality of Anchorage v. Suzuki (02/08/2002) sp-5533

     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, e-mail corrections@appellate.courts.state.ak.us.


             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

MUNICIPALITY OF ANCHORAGE,    )
                              )Supreme Court No. S-9657
             Appellant,       )
                              )Superior Court Nos. 3AN-99-11817 CI/
     v.                       )                   3AN-99-12542 CI
                              )
LISA K. SUZUKI; and DONG JOON )    O P I N I O N
LIM, f/k/a DONG J. YIM,       )
individually                  )
and d/b/a BLACK ANGUS INN,    )    [No. 5533 - February 8, 2002]
                              )
             Appellees.       )
______________________________)


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Dan A. Hensley, Judge.

          Appearances:  Dennis A. Wheeler, Assistant
Municipal Attorney, and William A. Greene, Municipal Attorney,
Anchorage, for Appellant.  Richard A. Weinig, Pletcher, Weinig,
Fisher & Dennis, Anchorage, for Appellee Dong Joon Lim.  

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          Alaska Statute 09.55.275 requires a municipality to
obtain preliminary approval of a replat before an eminent domain
acquisition that results in a "boundary change."   Because we hold
that a "boundary change" results when a municipality takes an
easement that is not coextensive with the property lines and that
functionally interferes with the landowner's use, the statute
required the Municipality of Anchorage to obtain preliminary
approval of replats showing the easements involved here.  We
therefore affirm the superior court decision requiring the
municipality to seek replat approval.
II.  FACTS AND PROCEEDINGS
          The Municipality of Anchorage filed a declaration of
taking against Dong Joon Lim, the owner of the Black Angus Inn.  In
a separate proceeding it filed a complaint for condemnation against
Lisa Suzuki, the lessee of a Texaco service station.  In each case
the municipality sought an easement in perpetuity on the affected
parcel as part of a project to improve Fifteenth Avenue.  The
easement taken has forced Black Angus to demolish part of two hotel
buildings, at a loss of twenty-two hotel rooms.  The easement taken
will require the destruction or movement of one of the Texaco
station's gasoline dispensing islands. 
          Lim and Suzuki argued to the superior court that AS
09.55.275 required the municipality to obtain "preliminary approval
of a replat" because each of the takings "result[ed] in a boundary
change."  Alaska Statute 09.55.275, entitled "Replat approval,"
provides:
          An agency of the state or municipality may not
acquire property located within a municipality exercising the
powers conferred by AS 29.35.180 or 29.35.260(c) that results in a
boundary change unless the agency or municipality first obtains
from the municipal platting authority preliminary approval of a
replat showing clearly the location of the proposed public streets,
easements, rights-of-way, and other taking of private property. 
Final approval of replat shall be similarly obtained.  However, if
a state agency clearly demonstrates an overriding state interest,
a waiver to the approval requirements of this section may be
granted by the governor.  The platting authority shall treat
applications for replat made by state or local governmental
agencies in the same manner as replat petitions originated by
private landowners.
          The municipality asserted in response that the phrase
"boundary change" as used in the statute is a term of art that
refers exclusively to changes in the boundary of a fee simple
estate, and that the phrase consequently does not include creation
or expansion of easements. 
          The superior court consolidated the two cases "for the
limited purpose of deciding the issue of whether the Municipality
was required by AS 09.55.275 to process a replat prior to
condemning the public use easements in each case."  The superior
court noted that the legislative context of AS 09.55.275 reveals
that its "purpose is to ensure that land acquisitions by condemning
agencies . . . comply with all local planning and zoning ordinances
and local regulations in the same manner and to the same extent as
other landowners."  The court held that 
          the interpretation of boundary change most
consistent with the text of the statute and most consistent with
the purpose of platting in general is that a boundary change is any
change of a boundary lot line, easement, right-of-way, or other
acquisition, in order to provide that a platting board can review
and make preliminary approval of an acquisition . . . consistent
with local land use planning laws. 
          Although the superior court held that preliminary plat
approval was required by AS 09.55.275, it also found that applying
the platting requirement retroactively would cause the municipality
undue hardship because the resulting delay would jeopardize federal
funding and raise construction costs.  The court therefore
determined that the appropriate remedy for these cases was
requiring the municipality to apply for a replat "in a short period
of time."  The record does not reflect whether the municipality has
complied with this order, and Appellee Dong Joon Lim implies that
it has not. [Fn. 1]  The municipality appeals from the superior
court's holding that AS 09.55.275 requires preliminary replat
approval for easements.
III. DISCUSSION
     A.   Standard of Review
          We apply our independent judgment to the interpretation
of a statute that does not "implicate an agency's special expertise
or determination of fundamental policies." [Fn. 2]  As this case
presents a question of first impression, our " 'duty is to adopt
the rule of law that is most persuasive in light of precedent,
reason, and policy.' " [Fn. 3]  In the absence of a definition of
"boundary change" in AS 09.55.275, we use our independent judgment
to determine the intent of the legislature in using this phrase.
[Fn. 4]  "[A] grant of the power of eminent domain is to be
strictly construed against the condemning party and in favor of the
property owner. . . ." [Fn. 5] 
     B.   A Taking that Is Not Coextensive with the Property Line
and that Functionally Interferes with the Landowner's Exclusive Use
Is a "Boundary Change."
          We construe the meaning of a statute by looking at "the
meaning of the language, the legislative history, and the purpose
of the statute in question." [Fn. 6]  Our goal " 'is to give effect
to the legislature's intent, with due regard for the meaning the
statutory language conveys to others.' " [Fn. 7]  We hold that an
easement that is not coextensive with the property owner's property
line and that functionally interferes with the landowner's
exclusive use is a boundary change under AS 09.55.275.
          1.   The plain meaning of "boundary change" supports the
landowners' interpretation.  
          In interpreting a statute, we have rejected a mechanical
application of the plain meaning rule in favor of a sliding scale
approach. [Fn. 8]  "The plainer the statutory language is, the more
convincing the evidence of contrary legislative purpose or intent
must be." [Fn. 9]  The language of a statute is "construed in
accordance with [its] common usage," unless the word or phrase in
question has "acquired a peculiar meaning, by virtue of statutory
definition or judicial construction." [Fn. 10]  We presume that
every word in the statute was intentionally included, and must be
given some effect. [Fn. 11]  In ascertaining the plain meaning of
the statute, we refrain from adding terms. [Fn. 12]
          The phrase "boundary change" is not defined in AS
09.55.275 or elsewhere in the Alaska Statutes. [Fn. 13]  It has not
acquired a particular meaning through judicial construction. 
Although the municipality and the landowners have cited cases that
use "boundary" in a manner consistent with their respective
positions, these usages do not control our interpretation.  We have
no reason to think that the legislature intended to use "boundary"
in the narrow sense urged by the municipality.
          "Boundary" is commonly defined as "[s]omething indicating
a border or limit." [Fn. 14]  Black's Law Dictionary defines "boundary"
as:
          Every separation, natural or artificial, which
marks the confines or line of division of two contiguous
properties.  Limits or marks of enclosures if possession be without
title, or the boundaries or limits stated in title deed if
possession be under a title.  See also Land boundaries; Metes and
bounds; Plat map.[ [Fn. 15]]
A boundary is a separation that marks the limits of property.  To
the extent that the municipality thinks the statute does not apply
to an easement, we disagree.  Easements are property:
               Property. That which is peculiar or
proper to any person; that which belongs exclusively to one.  In
the strict legal sense, an aggregate of rights which are guaranteed
and protected by the government.  The term is said to extend to
every species of valuable right and interest. . . .
               The word is also commonly used to denote
everything which is the subject of ownership, corporeal or
incorporeal, tangible or intangible, visible or invisible, real or
personal; everything that has an exchangeable value or which goes
to make up wealth or estate.  It extends to every species of
valuable right and interest, and includes real and personal
property, easements, franchise, and incorporeal hereditaments, and
includes every invasion of one's property rights by actionable
wrong.[ [Fn. 16]]
          Easements also have limits in the physical and measurable
sense.  These easements certainly do.  One of them currently
extends through the former location of twenty-two of the Black
Angus Inn's rooms, and the other extends through the former
location of a gasoline dispensing island.  And the limits have
certainly changed.  We think the plain meaning of "boundary change"
includes an easement that functionally interferes with the owner's
exclusive use, as do the easements at issue in this case.  The
municipality has failed to demonstrate that the word "boundary" must
be read as holding a more particular meaning.
          It is a canon of statutory construction that the reading
of the statute should not render any of its sections meaningless.
[Fn. 17]  The landowners argue that the municipality's
interpretation renders the final clause of the first sentence
meaningless.  They reason that if replat were only required for
boundary changes of fee simple interests, it would be unnecessary
to require that the replat show "clearly the location of the
proposed public streets, easements, right-of-ways, and other taking
of private property." [Fn. 18]  They note that the use of the term
"proposed" proves that "the replat must show that which will be
acquired, not that which has already been acquired."  We agree.
          The municipality argues that rights-of-way are not
limited to easements, but include fee simple interests.  The
municipality concludes from this that the final clause of section
.275 is not rendered meaningless by the municipality's
construction.  But this argument ignores the inclusion of
"easements" in the statute's list of interests that the replat must
show clearly.  Even though a right-of-way can refer to a fee simple
estate, the statute  requires that "proposed . . . easements . . .
and other taking of private property" be shown in the replat. [Fn.
19]  
          The municipality argues that the landowners'
interpretation fails to give effect to the statutory phrase "that
results in a boundary change."  We can contemplate hypothetical
situations in which an interest is taken without causing a boundary
change, thus giving meaning to the statute's limiting language
"that results in a boundary change."  For example, no boundary
change occurs if the condemning authority takes the entire parcel
in fee simple, if the proposed easement will be coextensive with
the parcel's existing boundaries, or if the municipality broadens
the scope of an existing easement without altering the easement's
boundaries.  A temporary easement does not result in a boundary
change.  The limitation thus retains meaning, even assuming the
circumstances it excludes are rare. 
          If the legislature had intended the meaning suggested by
the municipality, it could have easily tied the replat obligation
to fee simple interests.  It alternatively could have defined
"boundary change" to exclude easements.   That it did neither
suggests, but does not compel, the conclusion that it intended
"boundary change" to include easements.
          Given that the plain meaning of "boundary change"
encompasses changes in easement borders, such as those in the case
now before us, we will apply the plain meaning of the language
absent convincing evidence that the legislature intended a
different result. [Fn. 20]  
          2.   Legislative intent does not compel a different
result.  
          The legislative history for AS 09.55.275 is sparse.  The
primary source of legislative purpose for AS 09.55.275 is thus the
act itself.  
          The municipality argues that the act's purpose is
"abundantly clear"; it is to require coordination between state and
local governments.  The municipality concludes that Suzuki and
Lim's interpretation of the statute does nothing to further this
purpose.  We agree that this clear purpose is evidenced by the
session law.  The act is introduced as "AN ACT Relating to state
compliance with local planning, platting and zoning ordinances."
[Fn. 21]  Section one of the act amends AS 35.10.020:
          CONSULTATION WITH MUNICIPAL PLANNING
COMMISSIONS.  Before the construction of a public works in a
municipality, the department shall confer with the planning
commission of the municipality to determine that the welfare of the
public is properly protected and its agencies and zoning ordinances
and the local regulations in the same manner and to the same extent
as other landowners.  However if a state agency clearly
demonstrates an overriding state interest, a waiver to the
compliance requirement may be granted by the governor.[ [Fn. 22]] 

The language of section AS 09.55.275 makes it clear that the act
was intended to require the state to confer with local governments
on projects.  Section two amends AS 09.55 by adding the replat
approval section, quoted above in Part II. [Fn. 23] 
          This act is evidence that the legislature intended the
statute to be read broadly to achieve coordination between the
state and local governments.  If it had been the state rather than
the municipality improving the road, this purpose would have led us
to interpret "boundary change" broadly, to require coordination and
cooperation between state agencies and local governments.  Because
the statute imposes the same limitation on the state and
municipalities, [Fn. 24] interpreting "boundary change" to include
easements is more consistent with the legislative intent than the
narrow interpretation the municipality proposes.  
          The municipality argues that the purpose of plat approval
is to describe the land and the lines dividing the land so it can
be easily transferred.  Suzuki and Lim argue that replatting
provides a pictorial description of the easement in relation to the
rest of the property.  The municipality responds that platting is
not the best or most accurate way to describe an easement.  The
municipality would implicitly limit the statute's purpose to
achieving benefits that cannot be effected any other way.  We
reject this as a test for intent.  Replatting is one way to
describe or explain an easement, and replatting aids
transferability.  Replatting also provides some degree of local
control, as AS 09.55.275 envisions.   These purposes are consistent
with our reading of the statute.
          The superior court's ability to change the scope of the
taking may require a change in the plat; the municipality argues
that this makes a preliminary plat wasteful.  But the preliminary
replat requirement is potentially just as wasteful if the taking is
in fee simple.  The municipality also argues that reading the
statute broadly will encompass too many takings, including takings
for temporary easements.  But we think that most temporary takes
would not be boundary changes under AS 09.55.275.  The
municipality's policy arguments concerning the efficiency of the
statute are better addressed to the legislature than to us. They
shed little light on the meaning of the plain language or the
intent of the legislature.
          3.   We do not consider the municipality's new arguments
on appeal.
          The municipality argues that the local government has
been provided with a forum to protect its interests through the
Anchorage Metropolitan Area Transportation Study planning and
procedures.  But the municipality did not make this argument below,
so we do not consider it here. [Fn. 25]
          The municipality also argues that AS 09.55.275 does not
apply to home rule municipalities, and that because it is a home
rule municipality [Fn. 26] it is not subject to section .275. 
Because the municipality did not preserve this issue in the
superior court, we do not reach it here. [Fn. 27]  We can consider
unpreserved issues for plain error, but it is not apparent that the
superior court plainly erred in failing to resolve this appeal on
a ground the municipality now argues for the first time.  We also
note that AS 09.55.275 applies both to the state and to
municipalities.  It is not obvious why the legislature might have
chosen to make section .275 applicable to the state itself and to
all municipalities other than home rule municipalities.
          Moreover, it would seem that the word "municipality" must
be given a consistent meaning throughout section .275. [Fn. 28]  If
the statute does not require a home rule municipality to obtain
preliminary approval of a replat, it would seem to follow that the
state would not be obliged to obtain preliminary approval of a
replat if the property the state proposed taking was located in a
home rule municipality.  This would mean that the statute would not
require the state to obtain approval from the Municipality of
Anchorage if its proposed taking were within the municipality's
boundaries.    
IV.  CONCLUSION
          Because the taking of an easement that is not coextensive
with the landowner's property line and that functionally interferes
with an owner's exclusive use creates a boundary change under AS
09.55.275, we AFFIRM the superior court's holding that AS 09.55.275
required the municipality to seek preliminary replatting for the
two easements at issue here.


                            FOOTNOTES


Footnote 1:

     Appellee Lisa K. Suzuki has not filed a brief.  


Footnote 2:

     Cissna v. Stout, 931 P.2d 363, 366 (Alaska 1996) (citing Keane
v. Local Boundary Comm'n, 893 P.2d 1239, 1241 (Alaska 1995)).


Footnote 3:

     Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787
(Alaska 1996) (quoting Foreman v. Anchorage Equal Rights Comm'n,
779 P.2d 1199, 1201 (Alaska 1989) (citation omitted)).


Footnote 4:

     Id. (citing Alaska State Comm'n for Human Rights v. State, 796
P.2d 458, 460 (Alaska 1990)). 


Footnote 5:

     Bridges v. Alaska Hous. Auth., 349 P.2d 149, 154 (Alaska 1959)
(citation omitted).


Footnote 6:

     Muller, 923 P.2d at 787.


Footnote 7:

     Id. (quoting Tesoro Alaska Petroleum Co. v. State, 746 P.2d
896, 905 (Alaska 1987)).


Footnote 8:

     State v. Alex, 646 P.2d 203, 208-09 n.4 (Alaska 1982) (citing
State, Dep't of Natural Res. v. City of Haines, 627 P.2d 1047, 1049
n.6 (Alaska 1981)).


Footnote 9:

     Muller, 923 P.2d at 788 (citing Anchorage Sch. Dist. v. Hale,
857 P.2d 1186, 1189 (Alaska 1993)).


Footnote 10:

     Id. (citing Tesoro Alaska Petroleum Co., 746 P.2d at 905).


Footnote 11:

     Alaska Transp. Comm'n v. AIRPAC, Inc., 685 P.2d 1248, 1253
(Alaska 1984).


Footnote 12:

     Cf. Hickel v. Cowper, 874 P.2d 922, 927-28 (Alaska 1994) ("Our
analysis of a constitutional provision begins with, and remains
grounded in, the words of the provision itself.  We are not vested
with the authority to add missing terms or hypothesize differently
worded provisions in order to reach a particular result.").


Footnote 13:

     The phrase "boundary change" is used in various Alaska
statutes, but is not defined.  See AS 09.55.275; AS 15.13.010, .400
("boundary" is not included among definitions); AS 29.06.040, .450;
AS 44.33.812, .822, .826, .828.


Footnote 14:

     Webster's II New Riverside University Dictionary 193 (1994).


Footnote 15:

     Black's Law Dictionary 186 (6th ed. 1990) (emphasis added).


Footnote 16:

     Black's Law Dictionary 1216 (6th ed. 1990) (emphasis added)
(citations omitted) .


Footnote 17:

     Alaska Transp. Comm'n, 685 P.2d at 1253.     


Footnote 18:

     AS 09.55.275.


Footnote 19:

     Id.


Footnote 20:

     Muller, 923 P.2d at 788. 


Footnote 21:

     Ch. 96, SLA 1975.


Footnote 22:

     Ch. 96, sec. 1, SLA 1975.


Footnote 23:

     Ch. 96, sec. 2, SLA 1975, codified as AS 09.55.275.


Footnote 24:

     AS 09.55.275 ("An agency of the state or municipality may not
acquire property located within a municipality exercising the
powers [of condemnation] that results in a boundary change unless
the agency or municipality first obtains from the municipal
platting authority preliminary approval of a replat . . . .")
(emphasis added).


Footnote 25:

     Gates v. City of Tenakee Springs, 822 P.2d 455, 460-61 (Alaska
1991) (citing Wickwire v. McFadden, 633 P.2d 278 (Alaska 1981)).


Footnote 26:

     Anchorage Municipal Charter art. III, sec. 3.01; see also Area
G
Home & Landowners Org. v. Anchorage, 927 P.2d 728, 729 & n.1
(Alaska 1996).


Footnote 27:

     Gates, 822 P.2d at 460-61.


Footnote 28:

     Alaska Legislative Council v. Knowles, 21 P.3d 367, 372
(Alaska 2001) (holding that term must be read consistently
throughout) (citing Cenarrusa v. Andrus, 582 P.2d 1082, 1090 (Idaho
1978) ("Obviously the word item can not be given different meanings
within the same sentence.")).