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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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).