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Alaska Railroad v. Native Village of Eklutna (2/15/2002) sp-5534
Alaska Railroad v. Native Village of Eklutna (2/15/2002) sp-5534
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
ALASKA RAILROAD CORPORATION )
and DAMCO PAVING CORPORATION, )
an Alaska Corporation, )
) Supreme Court No. S-9277
Appellants, )
) Superior Court No.
v. ) 3AN-97-3187 CI
)
NATIVE VILLAGE OF EKLUTNA, )
LEE STEPHAN, ANNA LOWREY )
CURTIS, and MUNICIPALITY OF )
ANCHORAGE, ) O P I N I O N
)
Appellees. ) [No. 5534 - February 15, 2002]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage,
Brian C. Shortell, Judge.
Appearances: William S. Cummings, Ashburn &
Mason, Anchorage, for Appellant Alaska
Railroad Corporation. Sara E. Heideman,
Hedland, Brennan, Heideman & Cooke,
Anchorage, for Appellees Native Village of
Eklutna, Lee Stephan and Anna Lowrey Curtis.
William A. Greene, Deputy Municipal Attorney,
and Mary K. Hughes, Municipal Attorney,
Anchorage, for Appellee Municipality of
Anchorage.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
MATTHEWS, Chief Justice, with whom BRYNER,
Justice, joins, dissenting.
I. INTRODUCTION
Damco Paving Corporation operated a commercial rock
quarrying operation under a licensing agreement at the Alaska
Railroad Corporation's quarry in Eklutna. The superior court
enjoined its operations after the adjacent Native Village of
Eklutna and several of its residents filed suit alleging that
Damco was operating a quarry in violation of the applicable
zoning ordinances of the Municipality of Anchorage. Because the
superior court did not err in finding that the zoning ordinances
applied to the Damco operations, we affirm the injunction
prohibiting private quarrying operations by Damco.
II. FACTS AND PROCEEDINGS
A. Facts
A. The United States government owned and operated the Eklutna
quarry from an undetermined date in the late 1940's until 1985.
During that period, the quarry served primarily as a riprap and
ballast materials site in support of the federally owned and
operated railroad. In 1985 the railroad and all of its non-real
estate assets were turned over to the State of Alaska.1
Initially the federal government retained ownership of the quarry
and leased its use to the state-owned Alaska Railroad Corporation
(the Railroad).2 In 1989 the state obtained full ownership of
the quarry, and the Railroad continued to own the quarry to the
time of the present litigation.
The parties dispute the degree to which the Railroad
has actively operated the quarry. The Railroad produced
photographic and documentary evidence supporting active quarrying
in some years, storage and removal of previously processed
material in some years, and no information for other years.
Thus, it appears that under state and federal use, the quarry was
operated primarily in a multi-year cycle that consisted of a
summer of quarrying multi-year quantities of rock by blasting,
processing, and storing the quarried products. Then in
subsequent years the quarried materials were hauled away as
needed. When the stockpile became depleted, the Railroad would
then engage in another summer of active quarrying.
In May 1995 the Railroad entered into an exclusive
licensing agreement with Damco. Under the licensing agreement,
Damco was entitled to the exclusive use of the quarry for
commercial quarrying operations. In exchange, the Railroad
received royalty payments for the rock quarried. Damco
immediately began commercial quarrying operations. Damco's
constant quarrying and rock-crushing operations exceeded the size
and scope of the previous state and federal operations, which had
been undertaken in a more cyclical and limited manner.
B. Proceedings
A. In 1997 the tribal government of the nearby Native Village
of Eklutna and several of its residents (Eklutna) filed suit to
enjoin Damco's quarrying operations. Eklutna alleged that the
quarry was a nonconforming use of land within the Eklutna land
use district of the Municipality of Anchorage, and that neither
the Railroad, as the land owner, nor Damco, as the Railroad's
licensee, had sought a conditional use permit to proceed with the
commercial quarrying operation. Damco raised as a defense the
governmental immunity of both the state-owned railroad
corporation and the federal government, the previous land owner.
In December 1997 Superior Court Judge Brian C. Shortell
granted summary judgment to Eklutna. But in January 1998 Judge
Shortell stayed the effect of his order pending resolution of the
conflict through the municipal planning and zoning commission.
When Damco failed to complete the compliance action required by
the planning and zoning commission, Judge Shortell held a status
hearing. The Municipality of Anchorage and the Railroad were
eventually brought in as parties to the proceedings. The court
entered final judgment in favor of Eklutna on May 17, 1999,
requiring Damco to obtain a conditional use permit before it
could continue with its quarrying operations. The Railroad and
Damco then entered into an agreement settling Damco's breach of
contract claim against the Railroad and joining Damco as a party
to the Railroad's appeal to this court. The Railroad argues on
appeal that: (1) its quarry is a de facto conditional use under
Anchorage Municipal Code (AMC) 21.55.070, or alternatively, the
quarry is a nonconforming use under AMC 21.55.030; (2) AMC
21.55.090, which requires that the Railroad abide by an approved
development and restoration plan and that the planning and zoning
commission set a reasonable time period for discontinuation of
the quarry operation, does not apply to the Railroad; (3) the
federal government's supremacy immunity protects Damco's use of
the quarry; (4) the superior court's interpretation of the AMC
worked an unconstitutional taking; and (5) the superior court's
injunction was too broad.
III. STANDARDS OF REVIEW
We apply our independent judgment "[w]here the
interpretation of a zoning ordinance presents only a question of
statutory construction which does not involve agency expertise or
the formulation of fundamental policies."3
The superior court's grant of summary judgment is
reviewed de novo and will be affirmed if there are no genuine
issues of material fact in dispute and if the moving party is
entitled to judgment as a matter of law.4
We review an order granting a temporary injunction
under the abuse of discretion standard.5
IV. DISCUSSION
The outcome of this case turns on the interpretation of
the currently applicable Anchorage zoning ordinance.6 We explain
in the margin the genealogy of the current ordinance sections
because previous versions and legislative history help us to
interpret the current ordinance.7
A. The Quarry Is Not a De Facto Conditional Use Under the
Anchorage Municipal Code.
The Railroad's primary argument on appeal is that under
AMC 21.55.070 the quarry is a de facto conditional use of the
land rather than a nonconforming use that would require
application for a conditional use permit to operate. A
"nonconforming use" is a preexisting use of land that is
prohibited, regulated, or restricted under the current zoning
applicable to the area in which it is situated.8 A "conditional
use," also referred to as a "special exception,"9 is a use that
is generally inappropriate for the area in which it is situated
but that is permitted after additional controls and safeguards
are instituted "to ensure [its] compatibility with permitted
principal uses."10 By arguing that the quarry is a de facto
conditional use, the Railroad hopes to avoid the conditional use
permit application process and the planning and zoning
commission's imposition of controls and safeguards to ensure the
quarry's compatibility with permitted uses.
The Railroad's argument that the quarry is a de facto
conditional use under section .070 is premised on two necessary
bases. First, section .070 must be the controlling section of
the municipal zoning code. Second, section .070 must be
interpreted to provide for de facto conditional uses. For the
reasons discussed below, we independently reject both bases of
the Railroad's argument.
1. AMC 21.55.090 regulates mineral resource operations to the
exclusion of other zoning provisions.
a. Section .090 controls mineral resource operations because it
specifically addresses the issue while other provisions deal
generally with nonconforming uses.
The Railroad argues that under either AMC 21.55.030 or
AMC 21.55.070 it is permitted to allow Damco to operate a
nonconforming quarrying operation without submitting an
operations and amortization plan, as required by AMC 21.55.090.
We reject these contentions because section .090 specifically
addresses the topic of mineral resource operations while sections
.030 and .070 do not.
Chapter 21.55 addresses nonconforming uses and contains
all three sections at issue. Section .030 generally allows
existing nonconforming uses to continue, or "grandfathers" the
uses, without specifying any particular type of nonconforming
use:
Where, at the time of the original
passage of applicable regulations, lawful use
of land existed which would not be permitted
by the regulations thereafter imposed by
chapters 21.35 through 21.50, and where such
use involves no individual structure other
than small or minor accessory buildings, the
use may be continued so long as it remains
otherwise lawful . . . .[11]
In similarly general terms, section .070 "grandfathers" existing
conditional uses without specifying any particular type of
conditional use:
A use existing before the original
effective date of applicable regulations that
is permitted as a conditional use in the
district in which it is located under the
terms of this title shall not be deemed a
nonconforming use. Such use shall be
considered to exist as a conditional use.[12]
By contrast, section .090 specifically concerns nonconforming
uses that exploit mineral resources:
Notwithstanding the provisions of
section 21.55.070, where exploitation of
mineral resources exists as a nonconforming
use and has been in continuous existence
since April 21, 1969, or before, that use may
continue . . . .[13]
It is significant that section .090 opens with the
language, "[n]otwithstanding the provisions of section
21.55.070." This phrase literally means, "despite 21.55.070."
To read the zoning code as suggested by the Railroad, we would
have to read out the "notwithstanding" language of section .090.
But this violates the principal "that every word of a statute has
a purpose and is not superfluous."14 To avoid superfluity, we
interpret section .090 literally. It must therefore operate to
the exclusion of section .070.
Even without the "notwithstanding" language, section
.090 specifically addresses the topic of mineral resource
operations, whereas sections .030 and .070 do not. We have
previously noted that "[i]t is a maxim of construction that
specific statutes should be given precedence over more general
ones."15 When interpreting potentially conflicting provisions of
the zoning code, a more specific provision controls over
conflicting provisions that address the same topic in a more
general manner.16 Accordingly, we conclude that section .090
controls the zoning of mineral resource operations in the
Municipality of Anchorage to the exclusion of sections .030 and
.070.
b. The legislative history indicates that the Anchorage Borough
Assembly intended AMC 21.55.090 to be the exclusive provision
addressing "grandfathered" mineral exploitation operations.
The legislative history of the 1977 revision of what is
now section .090 also indicates that it covers the
"grandfathering" of all rights to mineral resource extraction
operations.
Anchorage adopted its first comprehensive zoning
ordinance in 1969.17 The ordinance regulated, among other things,
the extraction of minerals.18 A number of property owners,
however, had commenced the operation of gravel pits on their
properties before the implementation of the zoning code.19 The
extent of these "grandfather" rights to continue operating were
somewhat in doubt.20
In 1975 the superior court in Anchorage decided Greater
Anchorage Area Borough v. Alaska Aggregate Corporation (Alagco).21
In Alagco, Superior Court Judge James K. Singleton addressed the
original 1969 zoning code.22 Alagco had two controversial
operations on its property.23 One use at issue was a concrete
batch plant, for which Alagco had received a special exception
permit from the planning commission in 1964.24 The other use was
a "grandfathered" nonconforming gravel pit operation.25
Judge Singleton held that Alagco's right to operate the
concrete batch plant expired on July 2, 1974 according to the
terms of its special exception permit.26 The court further held
that Alagco's right to continue its nonconforming gravel mining
terminated one year after the predecessor to AMC 21.55.090,
Greater Anchorage Area Borough Code (GAABC) 21-7(I),27 was
effective because Alagco had not submitted the required
operations and amortization plan.28 Judge Singleton explained
that "[u]nless established as a non-conforming use or permitted
as a special exception, Ordinance No. 1-69 prohibits any use of
the subject premises for mineral exploitation."29 That is, unless
the use was "grandfathered" as an established operation for which
an operations and amortization plan had been submitted, or unless
the operation had already applied for and received a conditional
use permit, the zoning ordinance prohibited the operation. Judge
Singleton rejected Alagco's argument that GAABC 21-7(G) (the
predecessor to section .07030) created a de facto conditional use
in light of the explicit treatment of mineral resource operations31
in GAABC 21-7(I) (the predecessor to section .09032).
In the wake of the Alagco ruling, the Anchorage
Assembly reconsidered the issue of "grandfathered" mineral
extraction operations.33 Members of the mayor's administration
met with industry representatives and worked out a compromise
solution to the status of the law after Alagco.34 In essence, the
compromise was to reopen the filing period for owners to submit
an operations and amortization plan.35
Since the resulting zoning scheme effectively adopted
the result reached by the superior court in Alagco with a
compromise to reopen the operations and amortization plan-filing
period, the legislative history supports our interpretation that
AMC 21.55.090 applies to all mineral resource operations to the
exclusion of section .070.
2. AMC 21.55.070 does not provide for de facto conditional uses
for mineral resource operations.
The Railroad argues that AMC 21.55.070 provides for
automatic de facto conditional use status for preexisting uses of
land, including the quarry in this case. The Railroad
particularly relies on the first two sentences, which provide:
A use existing before the original effective
date of applicable regulations that is
permitted as a conditional use in the
district in which it is located under the
terms of this title shall not be deemed a
nonconforming use. Such use shall be
considered to exist as a conditional use.36
The Railroad argues that these sentences apply to the quarry and
grant it conditional use status without further action.
This argument fails because the third sentence of
section .070 modifies the first two: "The scope of the
conditional use shall be governed by the provisions of this
chapter."37 This sentence points in this case to AMC 21.55.090,
the section addressing nonconforming continuing uses of mineral
resource operations. Thus, even if section .070 applies in this
case, it still requires compliance with the other provisions of
chapter 55, including the filing of an operations and
amortization plan under section .090.
B. The Exception of AMC 21.55.090(H) Does Not Apply.
The Railroad next argues that paragraph (H) of section
.090, which states that "[t]his chapter shall not apply to any
mineral resource operation continuing as a lawful conditional use
on August 9, 1977,"38 provides an exception applicable to this
case. Although it is superficially plausible, we reject this
argument.
1. The quarry is a mineral resource operation.
For paragraph (H) to apply, the quarry must first be a
mineral resource operation.39 The AMC defines a mineral resource
operation as "commercial or industrial operations involving
removal of . . . peat, muck, topsoil, fill, sand, gravel or rock,
or any mineral and other operations having similar
characteristics."40 The quarrying, storage, sale, and removal of
rock is obviously a mineral resource operation.
2. The quarry was not a lawful conditional use on August 9,
1977.
The quarry must also have been a lawful conditional
use in 1977 for the exception of paragraph (H) to apply.
Although the Railroad concedes that the federal government did
not comply with the predecessor to section .09041 when it owned
the quarry in 1969 and 1977, it nonetheless argues that the
quarry was a lawful conditional use because municipal zoning
regulations do not apply to the federal government.
a. The federal government was not required to comply with the
municipal zoning ordinance.
The Railroad contends correctly that the municipality
could not enforce its zoning regulations against the federal
government. When it owned and operated the quarry, the federal
government was immune from zoning regulation by virtue of the
supremacy clause of the federal Constitution.42 Eklutna concedes
this point. But the Railroad confuses the federal government's
supremacy immunity from municipal enforcement of a zoning
regulation with a lawful conditional use attained by compliance
with regulatory requirements.
b. The government's supremacy immunity did not transform the
generally prohibited quarry usage into a lawful conditional use.
As support for its argument that the quarry was a
lawful conditional use in 1977, the Railroad contends that the
original zoning ordinance "did not apply to the United States,"
and that, "by its own terms [section .090] applied only to uses
subject to Municipal regulations in 1977." We disagree because
the quarry has existed as a prohibited land use that was exempt
from enforcement by supremacy immunity, not as a lawful
conditional use.
In 1969 the Greater Anchorage Area Borough first
classified the Eklutna area in its zoning scheme. At that time,
Eklutna was in an "unrestricted" or "U area." Mineral resource
extraction in "U areas" was permitted only as a special exception
and therefore a conforming use under GAABC 21.05.070(G) and
21.05.050(S)(4)(d).43 To qualify as a special exception, a
mineral resource operation had to apply to the planning
commission and submit an operations and amortization plan. As no
such plan was ever submitted to the planning commission, the
quarry never qualified as a special exception and did not
automatically become a lawful conforming use under GAABC
21.05.070(G). Thus, after the ordinance became effective, the
quarry was a nonconforming use that had to either cease
operations within a year or file an operations and amortization
plan.44 Since the federal government owned the quarry, it neither
filed an operations and amortization plan nor ceased its
quarrying activities. Instead, the quarry existed as a
prohibited use under the municipal code that was immune from
municipal enforcement under the federal government's supremacy
immunity. That condition continued when the municipal code was
amended in 1977. At that time, the present version of AMC
21.55.090 went into effect. Again the zoning ordinance required
documentation of a plan of operations, including an amortization
plan. Again, the federal government, shielded by supremacy
immunity, neither filed an operations and amortization plan nor
ceased its quarrying activities.
The quarry in 1977 was therefore a prohibited use that
was able to operate only because of the federal government's
supremacy immunity. When the Railroad obtained ownership of the
quarry in 1989, it could do nothing to make the quarry a lawful
conditional use as of August 9, 1977. Thus, the Railroad has
not satisfied the requirement of paragraph (H) -- a lawful
conditional use -- and the quarry remains subject to section
.090.45
C. A Government's Supremacy Immunity from Zoning Does Not
Transfer to a Private Party that Leases or Licenses the Use of
the Land.
The Alaska Railroad argues that it "succeeded to the
United States' rights in the land, and was free to transfer these
rights to DAMCO," as the basis for the argument that the
"grandfather" rights originating with the federal government are
alienable through the Alaska Railroad to Damco. This argument
implies that the Railroad's supremacy immunity is a transferable
property right. We disagree.
As the Maine Supreme Court held in affirming a zoning
board's exemption of a privately run salmon hatchery because of
the state's involvement and supervision of the project, "state
ownership alone is not enough to preclude the application of
local zoning regulations. There must be some showing that the
use of the state's land is in furtherance of a state purpose or
governmental function."46 Similarly, a New York court has held
that a private party leasing land from the federally operated
Conrail is subject to municipal building permit regulations.47
Accordingly, we reject the argument that Damco was able
to operate under the Railroad's supremacy immunity.
D. Public Land Is Not Subject to Constitutional Takings
Protections.
The Alaska Railroad also claims, presumably on behalf
of Damco, that the quarry is subject to constitutional takings
protections. This argument is frivolous because the takings
provisions of both the United States and Alaska constitutions
protect only private property from takings.48 Since the land at
issue here is owned by the Alaska Railroad Corporation, a state
agency, there is no takings issue.
If instead the Railroad's argument is that the taking
refers to Damco's property interest in its license to operate the
quarry, it still fails. First, Damco has no vested property
interest in the "grandfather" rights to operate the quarry. If
they belong to any party, the "grandfather" rights belong to the
Railroad. Second, Damco and the Railroad made no attempt to
comply with the zoning regulations and obtain conditional use
status for the quarry. Mere regulation of a land use does not
constitute a taking.49
E. The Superior Court's Injunction Was Not Too Broad.
The Railroad's final argument is that even if the
superior court was correct in entering summary judgment for
Eklutna and enjoining Damco's quarrying activities, the
injunction was too broad. The crux of the Railroad's complaint
is that the injunction bars the sale, storage, and removal of
previously blasted and processed rock that is currently stored at
the quarry.
The court's order enjoining the sale, storage, and
removal of commercial quantities of quarried rock is not too
broad because these activities are within the definition of a
mineral resource operation for which either nonconforming use
status or a conditional use permit is required.50 Moreover,
Damco appears to have quarried and processed much of the rock in
question during the long pendency of this case when Damco knew
its activities were possibly in violation of municipal zoning
ordinances. Plus, Damco still has the potential remedy of
applying for a conditional use permit to allow it to sell the
stockpiled rock. Accordingly, we hold that the superior court
did not abuse its discretion by enjoining Damco's sale, storage,
and removal of the rock.
V. CONCLUSION
A. Because the superior court properly concluded that Damco's
operation of the Eklutna quarry required a conditional use
permit, and because Damco did not have such a permit, we AFFIRM
the entry of summary judgment and the order enjoining Damco's
commercial quarrying activities.
MATTHEWS, Chief Justice, with whom BRYNER, Justice, joins,
dissenting.
Does AMC 21.55.090, which applies only to nonconforming
uses, apply to the railroad quarry? The majority answers "yes,"
concluding that the quarry was a nonconforming use when that
section became effective. My answer is "no" because under GAABC
21.05.070(G) land uses existing when zoning was first imposed
which are permissible as special exceptions in the use district
where the land is located become, without further action,
conforming uses. The quarry meets these qualifications because
it preexisted zoning, lies in a U-use district, and quarries are
permitted as special exceptions in U districts.
The central question in this case is whether the
railroad quarry existed as a nonconforming use as of the
institution of zoning in 1969. The answer is not to be found in
GAABC 21.05.070(I).1 That subsection tells us the actions that
mineral operations that are nonconforming uses must take to stay
in business, but it does not tell us which mineral operations are
nonconforming uses. The latter subject was addressed in GAABC
21.05.070(G). I set out this subsection at this point, along
with GAABC 21.05.070(I), so that the reader can readily view both
subsections in context:
GAABC 21.05.070(G) provided:
Uses Under Special Exception[2]
Provisions Not Nonconforming Uses. A use
existing before the effective date of this
ordinance which is permitted as a Special
Exception in a district under the terms of
this ordinance shall not be deemed a
nonconforming use in such district, but shall
without further action be considered a
conforming use. (Emphasis added.)
GAABC 21.05.070(I) provided in relevant part:
Mineral Resources Operations. Where
exploitation of mineral resources exists as a
nonconforming use, the following regulations
shall govern:
(1) Time limitations on Mineral Resource
Operations. Within one year from the
effective date of this ordinance, either such
use shall cease or the owners thereof shall
prepare for submission to the Planning
Commission, a plan for development and re-use
of the operation site in conformity with the
provisions of Sec. 21.05.060(M)(5), which
plan will result in phasing out the operation
within a specified period.
Subsection .070(G) applied to the railroad quarry. The
quarry was located in a U district when the ordinance went into
effect. Mineral resource operations were permitted in U
districts as a special exception.3 Since quarries were permitted
as a special exception in a U district, they were not "deemed a
nonconforming use in such district."4 Instead, "without further
action," under the express terms of subsection .070(G) they were
to "be considered a conforming use."5
The majority opinion disagrees with the conclusion that
the railroad quarry became a conforming use at the advent of
zoning under subsection .070(G). Slip Op. at 19. It
acknowledges that in U districts mineral resource operations were
permitted as a special exception. Slip Op. at 18. But it states
that "[t]o qualify as a special exception, a mineral resource
operation had to apply to the planning commission and submit an
operations and amortization plan."6 Slip Op. at 19. Because no
application was submitted in the case of the railroad quarry, the
majority concludes that "the quarry never qualified as a special
exception and did not automatically become a lawful conforming
use under GAABC 21.05.070(G)." Slip Op. at 19. The majority
thus reasons that an owner using property before the effective
date of the ordinance which is permitted as a special exception
in the district in which the land is placed must apply for a
special exception in order to "automatically" obtain conforming
use status. This, it seems to me, conflicts with subsection
.070(G). That subsection states in clear terms that the
preexisting use becomes a conforming use "without further action"
when zoning is imposed.
Perhaps the majority has concluded sub silentio that
natural resource extraction is a special type of special
exception that is not covered by subsection .070(G). But such a
conclusion would lack textual support. Subsection .070(G) speaks
of special exceptions without differentiation, plainly implying
that all special exceptions are meant to be included. Under that
subsection only special exceptions for uses that did not preexist
zoning must be applied for.7 Applications for those special
exception uses must contain specified information setting out the
details of the proposed use.8
To say, as the majority does, that preexisting uses
that are permissible as special exceptions must have been applied
for in order to qualify for "automatic" conforming use status is
a contradiction in terms. Such a conclusion renders meaningless
the provision in subsection .070(G) that such a use "shall
without further action be considered a conforming use."
Therefore, subsection .070(G) should be interpreted to
mean what it says. Land uses in existence when zoning is first
imposed which are permitted as special exceptions in the use
district in which the land is located are not nonconforming uses.
Instead, without further action they are considered conforming
uses. The railroad quarry thus became a conforming use under
subsection .070(G) when zoning was imposed in Eklutna. In turn,
the quarry did not "exist[] as a nonconforming use" under
subsection .070(I) and therefore the requirements of subsection
.070(I) did not apply to it. The amendments of August 9, 1977,
contained in AMC 21.55.090, also do not apply to the quarry
because section .090 only applies to mineral operations that
exist "as a nonconforming use."
In summary, the railroad quarry existed as a conforming
use rather than a nonconforming use. Since section .090 does not
apply to the railroad quarry, the theory relied on by the
majority is erroneous. As this was also the theory on which
summary judgment was granted by the superior court, the judgment
should be reversed and this case should be remanded for further
proceedings.
_______________________________
1 See Alaska Railroad Transfer Act, 45 U.S.C. 1201-14
(1987).
2 AS 42.40.010.
3 Balough v. Fairbanks North Star Borough, 995 P.2d 245,
254 (Alaska 2000).
4 See id.
5 See North Kenai Peninsula Road Maint. Serv. Area v.
Kenai Peninsula Borough, 850 P.2d 636, 639 (Alaska 1993).
6 The relevant sections of the current Anchorage zoning
ordinance follow.
21.55.010 Intent.
Within the zoning districts established
by this title or amendments that may later be
adopted, there may exist lots, structures,
uses of land and structures, and
characteristics of use which were lawful
before the effective date of the applicable
regulations, but which would be prohibited,
regulated or restricted under the terms of
chapters 21.35 through 21.50 or future
amendments. It is the intent of this chapter
to permit these nonconformities to continue
until they are removed, but not to encourage
their perpetuation. It is further the intent
of this chapter that nonconformities shall
not be enlarged upon, expanded or extended,
or be used as grounds for adding other
structures or uses prohibited elsewhere in
the same district.
. . . .
21.55.030 Nonconforming uses of land.
Where, at the time of the original
passage of applicable regulations, lawful use
of land existed which would not be permitted
by the regulations thereafter imposed by
chapters 21.35 through 21.50, and where such
use involves no individual structure other
than small or minor accessory buildings, the
use may be continued so long as it remains
otherwise lawful, provided:
A. No such nonconforming use shall be
enlarged or increased or extended to occupy a
greater area of land than was occupied at the
effective date of adoption or amendment of
the relevant regulations.
B. No such nonconforming use shall be
moved in whole or in part to any portion of
the lot or parcel other than that occupied by
such use at the effective date of adoption or
amendment of the relevant regulations.
C. If any such nonconforming use of land
ceases for any reason for a period of more
than one year, any subsequent use of land
shall conform to the regulations specified by
this title for the district in which such
land is located.
D. No additional structure not
conforming to the requirements of this title
shall be erected in connection with such
nonconforming use of land.
21.55.070 Uses permitted under conditional
use provisions.
A use existing before the original
effective date of applicable regulations that
is permitted as a conditional use in the
district in which it is located under the
terms of this title shall not be deemed a
nonconforming use. Such use shall be
considered to exist as a conditional use. The
scope of the conditional use shall be
governed by the provisions of this chapter
unless modified by the planning and zoning
commission in accordance with section
21.15.030. . . .
21.55.090 Mineral resource operations.
Notwithstanding the provisions of
section 21.55.070, where exploitation of
mineral resources exists as a nonconforming
use and has been in continuous existence
since April 21, 1969, or before, that use may
continue provided the owner thereof complies
with the following:
A. On or before March 31, 1978, the
owner shall obtain approval by the municipal
planning and zoning commission of, and agree
to abide by, a development and restoration
plan for the property. . . .
B. A narrative statement shall also be
submitted with the development and
restoration plan. . . .
C. In connection with consideration of
the owner's proposed development and
restoration plan, the commission shall set a
reasonable period of time for discontinuation
of the mineral resource operation. . . .
. . . .
H. This chapter shall not apply to any
mineral resource operation continuing as a
lawful conditional use on August 9, 1977.
I. This chapter shall not be construed
to prohibit or restrict owners of
nonconforming mineral resource operations
from raising constitutional or legal
objections to decisions of the planning and
zoning commission relating to restoration
plans, amortization or conditions of
separation.
7 The current AMC 21.55.090 was derived with only minor
changes and renumbering from the Greater Anchorage Area Borough
Code (GAABC) 21.05.070(I), which the assembly enacted on August
9, 1977. Its predecessor is the original 1969 Zoning Ordinance
of the Greater Anchorage Area Borough 21-7(I). All versions
require mineral resource operations that exist as nonconforming
uses to file an amortization plan. The 1977 amendment added
substantially to the original in an effort to specify both the
rights of the mineral resource operation owners and the powers of
the planning and zoning commission.
The current AMC 21.55.070 was derived from GAABC
21.05.070(G), which in turn was derived from the original 1969
Zoning Ordinance of the Greater Anchorage Area Borough 21-7(G).
GAABC 21.05.070(G) and 21-7(G) both allowed preexisting uses that
were permitted as special exceptions to continue as conforming
uses. The current version AMC 21.55.070 allows a preexisting use
that is permitted as a conditional use to continue as a
conditional use.
8 See AMC 21.55.010 (1999); 1 Kenneth H. Young,
Anderson's American Law of Zoning 6.01, at 481-82 (4th ed.
1996).
9 See AMC 21.35.020 ("A special exception is a
conditional use, and wherever the terms appear in this title they
may be used interchangeably.").
10 AMC 21.35.020 (defining "special exception"); see 2
Kenneth H. Young, Anderson's American Law of Zoning 9.20, at
167-73 (4th ed. 1996).
11 AMC 21.55.030.
12 AMC 21.55.070.
13 AMC 21.55.090 (emphasis added).
14 City of Cordova v. State, Dep't of Health and Soc.
Servs., Medicaid Rate Comm'n, 789 P.2d 346, 353 (Alaska 1990).
15 Id. at 352.
16 See id.
17 See George M. Sullivan, "Grandfather" Gravel Pit
Ordinance, AO No. 77-224, Assembly Memorandum 593-77, at 1 (July
17, 1977).
18 See id.
19 See id.
20 See id.
21 No. 74-4496 Ci. (Alaska Super., 3d Dist., Anchorage,
June 16, 1975).
22 See id. at 1-5.
23 See id.
24 See id. at 2-5.
25 See id. at 3, 5.
26 See id. at 16.
27 GAABC 21-7(I) provided:
Where exploitation of mineral resources
exists as a nonconforming use, the following
regulations shall govern:
(1) Time limitations on Mineral Resource
Operations. Within one year from the
effective date of this ordinance, either
such use shall cease or the owners
thereof shall prepare for submission to
the Planning Commission, a plan for
development and re-use of the operation
site in conformity with the provisions
of Sec. 21-6(M)(5), which plan will
result in phasing out the operation
within a specified period of time. The
plan for re-use shall indicate a
proposal for re-use of the property in
accordance with the regulations of this
ordinance for the district in which the
property is located.
Such plans, with other necessary
documents, shall be presented to the
Planning Commission at least 90 days
before expiration of the one year
period. If not so presented, or if not
approved by the Planning Commission as a
Special Exception, continued operation
after the expiration of the one year
period shall be a violation of this
ordinance.
28 See Alagco, No. 74-4496 at 15-16.
29 Id. at 16.
30 Compare GAABC 21-7(G) with AMC 21.55.070. GAABC 21-
7(G) provided:
A use existing before the effective date of
this ordinance which is permitted as a
Special Exception in a district under the
terms of this ordinance shall not be deemed a
nonconforming use in such district, but shall
without further action be considered a
conforming use.
31 See Alagco, No. 74-4496 at 15-16.
32 Compare GAABC 21-7(I) with AMC 21.55.090.
33 See George M. Sullivan, "Grandfather" Gravel Pit
Ordinance, AO No. 77-224, Assembly Memorandum 593-77, at 1-3
(July 17, 1977).
34 See id. at 1-2.
35 See id. at 2-3; compare Anchorage Ordinance (AO) 77-251
(Nov. 22, 1977) and AO 77-224 (Aug. 9, 1977) with GAABC 21-
7(I).
36 AMC 21.55.070.
37 AMC 21.55.070.
38 AMC 21.55.090(H).
39 Although this is a simple question with an obvious
result, it has relevance to the Alaska Railroad's later argument
that the superior court's injunction is too broad.
40 AMC 21.35.020.
41 Former GAABC 21-7(I), later renumbered 21.05.070(I) in
1969 and AMC 21.55.090 in 1977-78.
42 See Hancock v. Train, 426 U.S. 167, 178 (1976);
Blackburn v. United States, 100 F.3d 1426, 1435 (9th Cir. 1996).
43 GAABC 21.05.070(G) provided:
Uses Under Special Exception Provisions Not
Nonconforming Uses. A use existing before
the effective date of this ordinance which is
permitted as a Special Exception in a
district under the terms of this ordinance
shall not be deemed a nonconforming use in
such district, but shall without further
action be considered a conforming use.
GAABC 21.05.050(S)(4) provided, in relevant part:
Subject to the requirements of the special
exception procedures of this ordinance, the
following uses may be permitted:
. . . .
d. Natural resource extraction, subject to
the provisions of Section
21.05.060(M)(5).
GAABC 21.05.060(M)(5) provided, in relevant
part:
Natural Resource Extraction:
a. A site plan, drawn to scale, shall be submitted with any
application for a Special Exception.
. . . .
b. A narrative statement shall also be submitted with the
application for a Special Exception.
. . . .
44 GAABC 21.05.070(I) provided, in relevant part:
Where exploitation of mineral resources
exists as a nonconforming use, the following
shall govern:
(1) Time limitations on Mineral Resources
Operations. Within one year from the
effective date of this ordinance, either such
use shall cease or the owners thereof shall
prepare for submission to the Planning
Commission, a plan for development and re-use
of the operation site in conformity with the
provisions of Sec. 21.05.060(M)(5), which
plan will result in phasing out the operation
within a specified period. The re-use plan
shall indicate a proposal for re-use of the
property in accordance with the regulations
of this article for the district in which the
property is located.
45 Section .090 requires that the owner of a nonconforming
use of mineral resource exploitation gain planning and zoning
commission approval of a development and restoration plan by
March 31, 1978. Since no landowner has complied with this
requirement of section .090, the possibility that the quarry can
continue to operate as a nonconforming use is now foreclosed.
However, we note that if a lessee or licensee of the Railroad
would like to quarry rock at the Eklutna quarry in the future,
that party may apply for a conditional use permit under AMC
21.50.070, which has similar regulatory requirements to those of
section .090. Compare AMC 21.55.090 with AMC 21.50.070.
46 Senders v. Town of Columbia Falls, 647 A.2d 93, 95 (Me.
1994) (citing Campbell v. City Council of Lynn, 586 N.E.2d 1009
(Mass. 1992); People v. New York Racing Ass'n, Inc., 457 N.Y.2d
668 (N.Y. App. 1982)).
47 See People v. Saltzman, 483 N.Y.S.2d 560, 561-62 (N.Y.
Crim. 1984).
48 U.S. Const. amend. V; Alaska Const. art. I, 18.
49 See Zerbetz v. Municipality of Anchorage, 856 P.2d 777,
782 n.5 (Alaska 1993) ("The rule under the United States
Constitution is that 'environmental' statutes, ordinances, or
regulations which limit a landowner's use of his property do not
accomplish a taking requiring compensation unless the owner has
been deprived of all economically beneficial uses of his
property.").
50 See AMC 21.35.020 and 21.40.240.
1 Actually as originally enacted in 1969 the section in
question was GAABC 21-7(I), but this was soon recodified without
change as GAABC 21.05.070(I). See note 27 of the majority
opinion. I will use the recodified numbering system to avoid
confusion because it is used by the majority opinion.
2 In 1977 the term "Special Exception" as used in the
zoning ordinance was changed to the term "Conditional Use." The
terms are synonymous, for the definition of "Special Exception"
became the definition of "Conditional Use." Both terms are
defined as: "A provision which allows for flexibility within the
zoning ordinance by permitting certain specified uses in zoning
districts where such uses are generally considered appropriate,
but only after additional controls and safeguards are applied to
insure their compatibility with permitted principal uses."
3 GAABC 21.05.050(S)(4)(d).
4 GAABC 21.05.070(G).
5 Id. By contrast, if at the advent of zoning the quarry
had been located, for example, in an R-1 district where mineral
resource operations were flatly prohibited -- that is, not
permitted even by special exception -- then the quarry would have
become a nonconforming use. As such, the operation of the quarry
would have been governed by GAABC 21.05.070(I) as well as
21.05.070(A) and (C). The operation in the Alagco case,
discussed by the majority on pages 12-15, was in an R-l zone and
thus was a nonconforming use. See Greater Anchorage Area Borough
v. Alaska Aggregate Corp., No. 74-4496 Ci. (Alaska Super., 3d
Dist., Anchorage, June 16, 1975) at 2-3.
6 The amortization plan is evidently a reference to one
of the requirements of an application for a natural resource
extraction special exception. The application must contain a
narrative statement setting forth the "[e]stimated length of time
necessary to complete the operation." GAABC
21.05.060(M)(5)(b)(iv).
7 GAABC 21.05.080(G).
8 See, e.g., GAABC 21.05.060(M)(1)(b) requiring site
plans for hospitals, nursing and rest homes and similar
institutions and GAABC 21.05.060(M)(6)(c) requiring site plans
for storage yards. All of the special exception uses for a U
district are subject to various conditions and procedures under
GAABC 21.05.050(S)(4):
Subject to the requirements of the
special exception procedures of this
ordinance, the following uses may be
permitted:
a. Mobile home parks, subject to the
provisions of Section 21.05.060(M)(11).
b. Junkyards, automobile wrecking
yards and salvage yards; subject to the
provisions of Section 13.25.100
(Junkyards) of this code.
c. Noxious, injurious or hazardous
uses, as defined in Section
21.05.060(S)(5); provided, however, that
the Planning Commission may grant a
special exception for such uses when it
finds that the public health, safety,
welfare and convenience will be
adequately protected by location,
topography, fencing, buffering or by
observation of protective performance
standards that effectively remove the
proposed use from classification as a
nuisance.
d. Natural resource extraction,
subject to the provisions of Section
21.05.060(M)(5).
e. Uses concerned with alcoholic
beverage sales and dispensing allowed as
special exceptions pursuant to Section
21.05.060(N).
