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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cizek v. Concerned Citizens of Eagle River (6/14/2002) sp-5584

Cizek v. Concerned Citizens of Eagle River (6/14/2002) sp-5584

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


JENNIFER CIZEK and JOSEPH     )
CIZEK,                        )
                              )
               Appellants,         )    Supreme Court No. S-9574
                              )
     v.                       )    Superior Court No.
                              )    3AN-98-7307 CI
CONCERNED CITIZENS OF EAGLE   )
RIVER VALLEY, INC., NORA      )    OPINION ON REHEARING
FIRMIN, PATRICIA BALZARINI,   )
and CHARLES BALZARINI,        )    [No. 5584 - June 14, 2002]
                              )
               Appellees.          )
________________________________)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Brian C. Shortell, Judge.

          Appearances:  William S. Cummings, Ashburn  &
          Mason,   P.C.,  Anchorage,  for   Appellants.
          Suzanne  H.  Ewy, Law Offices of  Suzanne  H.
          Ewy, Eagle River, for Appellees.

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

          BRYNER, Justice.


I.   INTRODUCTION

          The  Cizeks  appeal  a  superior  court  decision  that

enjoined  their use of a parcel of land as an airstrip after  the

court  held  that the airstrip was not a continuing nonconforming

use under Anchorage zoning laws.  Because a nonconforming use  of

property  is  not  maintained simply by the property's  continual

suitability  for  the  use or by sporadic  unauthorized  use,  we

affirm the trial court's decision.

II.  FACTS AND PROCEEDINGS

          This  case centers on the history of a private airstrip

in  Eagle River.  Harvey Pullen homesteaded a parcel of  land  in

1964  on  which  he built the airstrip - then in an  unrestricted

zoning  area.   In  1970  Pullen sold a  part  of  his  homestead

adjacent to the airstrip to the Leonards.  James "Pat" Leonard is

a  pilot and used the airstrip with Pullen's permission.  In 1974

Pullen sold the balance of the homestead, including the airstrip,

to  Robert and Katie Spils and Helen Cole.  As part of the  sale,

the  Spilses  and  Cole  signed a written agreement  with  Pullen

granting  Leonard  a  revocable license  to  continue  using  the

airstrip.  The agreement was not recorded.

          In  1982  the Spilses and Cole sold their parcel  to  a

group   of   investors   called  the  Eagle   River   Partnership

(Partnership), which intended to develop the property,  including

the  airstrip, as a subdivision.  Two years later, in  1984,  the

property  was  rezoned  R-10, for which  an  airstrip  is  not  a

permitted   or   conditional  use.   The  following   year,   the

Partnership  discovered the existence of  the  written  agreement

with  Leonard and sued to quiet title.  Leonard settled with  the

Partnership and agreed not to use the airstrip as a condition  of

settlement.

          After Leonard's settlement, two other pilots, Leonard's

friends Lee McElhany and Ken Evans, continued to use the airstrip

on a very infrequent basis, but not with the knowledge or consent

of the Partnership.

          By  1990 the Partnership's development plans had fallen

through  and the land went through several conveyances, including

reconveyance  to  the  Spilses and Cole in lieu  of  foreclosure.

Steve  Dike and Barry Kell purchased the property in 1990.   Dike

built  a house on the property in 1991-92, and Kell conveyed  his

interest to Dike in 1994.

          Dike  hit  upon  the  idea of selling  parcels  of  the

property  as  a  fly-in  subdivision.  In  1995  he  cleared  the

airstrip  and petitioned the Municipality of Anchorage to  rezone

the  parcel  R-6  for  the  fly-in subdivision  and  to  grant  a

conditional  use  allowing the airstrip to be used.   The  public

hearing process regarding the rezoning engendered a great deal of

neighborhood  opposition.  The Department  of  Planning  assigned

Municipal Code Enforcement Manager David Brennan to determine  if

the  airstrip was a legal nonconforming use; he concluded it was.

Acting  on Brennan's advice, the Planning Commission granted  the

conditional  use  and  recommended that  the  Anchorage  Assembly

rezone the property.

          Eagle  River  resident Art Isham appealed the  Planning

Commission's  conditional  use  decision.   In  April  1996   the

Assembly  decided  to  stay  the  commission's  approval  of  the

conditional use for the airstrip, concluding that the conditional

use  should  not take effect until a zoning change was  approved.

The next month the Assembly provisionally granted Dike's rezoning

request,  requiring that he first file a plat in conformity  with

his  plans.  Dike never filed the plat, and no further action was

taken: the property was not rezoned.

          About  a  year  later,  in 1997,  Dike  sold  half  the

property  to  the Cizeks.  They planned to build a home  with  an

attached   hangar  and  use  the  airstrip.   But  in  1998,   an

organization  calling itself Concerned Citizens  sued  to  enjoin

Dike  and  the Cizeks from using the airstrip; Concerned Citizens

claimed  that the nonconforming use right had lapsed from non-use

between 1985 and 1995.

          After  a  bench trial,  Superior Court Judge  Brian  C.

Shortell   ruled  in  favor  of  Concerned  Citizens   that   the

nonconforming use rights had lapsed.

          The Cizeks appeal.

III. DISCUSSION

     A.   The Airstrip Was Not a Continuing Nonconforming Use.1

          The  Cizeks  challenge the trial court's interpretation

and  application  of  Anchorage  Municipal  ordinances  governing

          nonconforming uses.  They claim that the airstrip on their

property  was  a  continuing nonconforming use under  Anchorage's

zoning laws.

          Although   the   Anchorage  Municipal  Code   tolerates

nonconforming uses, it encourages their termination and  prevents

them  from  expanding.2  Anchorage Municipal Code (AMC) 21.55.030

governs nonconforming uses of land.  It states in relevant part:

               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 . . . ,
          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:
          
               . . . .
     
               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.

          1.    Actual  use is required to continue nonconforming

uses.

          The  Cizeks  argue that the fact that the airstrip  was

usable  as an airstrip throughout the relevant time period should

suffice  to continue an existing nonconforming use.  They  reason

that the "use" contemplated by the Municipal Code is the "use  of

the land as an airstrip, not use of the airstrip by planes."

          But  the  Cizeks' interpretation of what satisfies  the

Municipal Code to continue a nonconforming use is illogical.   If

we  were  to  adopt the Cizeks' interpretation, local governments

could  almost  never terminate a nonconformity because  it  would

legally  continue as long as the land's physical suitability  for

actual  nonconforming use remained.  In effect, then, the  Cizeks

propose  to  define  cessation of use under AMC  21.55.030(C)  as

cessation  of all potential for use.  We doubt that the Anchorage

          Assembly had this result in mind when it provided for the

termination  of nonconformities after more than one year  of  the

cessation of the prior use of the land.

          We  rejected an analogous argument in Kelly Supply  Co.

v.  City  of  Anchorage.3  There, a legal nonconforming  use  was

established by the Alaska Crippled Children's Association  for  a

"diagnostic,  treatment  and educational center  for  handicapped

children"  within a district zoned for residential  use.4   After

the  children's  center vacated the building,  the  zoning  board

approved the new owner's petition to use the building as a  blood

bank  under  the  existing nonconforming use.  Later,  the  owner

leased  parts  of  the  building  to  the  Alaska  Mental  Health

Association  and the Rural Alaska Community Action Program.   The

trial court upheld the zoning board's challenge to those uses  as

not  being  consistent with the existing nonconforming  use.   On

appeal,  the building owner argued that it had a vested right  to

use  the  building in the same manner as the previous  owner  and

that  the  current use was consistent with the prior use  because

both  were  "medical  uses."5   We disagreed,  holding  that  the

decision  of  the  zoning board to approve the blood  bank's  use

under  the previous nonconforming use terminated any other rights

held  under  the prior use.  We also specifically rejected  Kelly

Supply's argument that no change in use occurred, noting that the

transition  from  the use as a disabled children's  center  to  a

blood  bank  "was a change of use."6  Therefore, we rejected  the

argument  that  the  nonconforming use  had  not  changed  simply

because  the  physical infrastructure for both medical  uses  was

similar.

          Moreover,  we  have noted a policy that  "nonconforming

uses are to be restricted and terminated as quickly as possible"7

because  those uses frustrate a local government's implementation

of  consistent  and  logical land use  planning.   The  Anchorage

Municipal Code echoes this policy stating an intent to "permit  .

.  .  nonconformities to continue until they are removed, but not

          to encourage their perpetuation."8  We will not frustrate that

intent by defining use to include usability.

          We  therefore reject the Cizeks' argument that  because

the  land  was  usable  as  an  airstrip  the  nonconforming  use

continued.

          2.   Sporadic,  unauthorized use will  not  continue  a
               nonconforming use.
               
          The  Cizeks next argue that the occasional use  of  the

airstrip  by McElhany and Evans continued the nonconforming  use.

They  assert that McElhany and Evans used the airstrip  at  least

once  per  year between 1985 and 1995 and that use continued  the

nonconformity.   Concerned Citizens argues  that  McElhany's  and

Evans's  use  of  the airstrip was trespass  and  should  not  be

counted  as  use  to sustain a nonconforming use.  Alternatively,

Concerned  Citizens  argues that even if McElhany's  and  Evans's

flights  were not trespass, they were too infrequent to  continue

the nonconforming use.

          The  trial  court  ruled  that  the  nonconforming  use

terminated after the Leonards disclaimed any interest in the land

in 1985.  The court found that no one other than McElhany, Evans,

and  Leonard used the airstrip between 1984 and 1990; the use was

not  known to the owners; the airstrip was not maintained  for  a

period  of at least five years; and airplanes were not stored  at

the airstrip.9

          After  reviewing the record, we believe that the  trial

court  was  not  clearly erroneous in finding that  McElhany  and

Evans  were  the only pilots that may have used the  airstrip  at

least  yearly  between 1984 and 1995 - the Cizeks  concede  this.

And  it  is also a reasonable inference from the evidence in  the

record that their use was at best unauthorized and may have  been

trespass.   Pat  Leonard testified that he  knew  that  the  1985

settlement  precluded him from using the airstrip,  but  that  he

invited  McElhany and Evans to use the airstrip for their  annual

flight  checks  and  for  social  visits.   McElhany  and   Evans

apparently  assumed  Leonard owned the airstrip;  they  therefore

          never sought or received the owners' permission to use the

airstrip.

          Given  this evidence, we conclude that the trial  court

did not err in finding that the highly intermittent, unauthorized

use  by  McElhany  and  Evans did not  suffice  to  continue  the

nonconforming use.10

     B.   The Statute of Limitations Had Not Run.11

          The  Cizeks  argue that the statute of limitations  had

run on Concerned Citizens' cause of action.  They assert that the

action was subject to the two-year limitations period for actions

upon  a  statute and that the period began to run in March  1995,

when  Dike  began  actively using the property  as  an  airstrip.

Concerned  Citizens argues that the trial court  correctly  ruled

that  the  cause  of  action accrued each day that  the  property

violated the zoning laws.  We agree.

          Where  a  cause  of  action is based  on  a  continuing

violation of a land use regulation, the Anchorage Municipal  Code

provides  that  each day is a separate violation:  "Each  act  or

condition  in violation of this title, and every day  upon  which

the  act  or  condition occurs, is a separate violation  of  this

title."12  Therefore, the statute of limitations started  to  run

anew  each  day that the property was in violation, and Concerned

Citizens' suit was timely.

     C.   Estoppel and Laches Did Not Bar the Action.13

          The  Cizeks  argue  that Concerned Citizens  should  be

estopped from arguing that the nonconforming use was discontinued

before 1995; alternatively, they argue that laches bars Concerned

Citizens' suit.

          The  trial  court,  in a separate decision  and  order,

rejected the Cizeks' estoppel and laches defenses.  With  respect

to the estoppel argument, the court ruled that the Cizeks did not

reasonably  rely  on  any  Municipal  assertion  of  an  existing

nonconforming  use and would not be prejudiced by  enforcing  the

zoning  restrictions.    More important,  the  court  noted  that

          "[e]ven if the Municipality's assertion should estop it from

forbidding the Cizeks['] use of the airstrip, justice  would  not

require  [Concerned  Citizens] . . . to be  similarly  estopped."

With  respect to laches, the court held that the defense did  not

apply because Concerned Citizens did not unduly delay in bringing

suit.

          We  agree with the trial court that there was no  basis

for  applying  estoppel to Concerned Citizens' arguments.14   The

Cizeks  cannot assert estoppel against Concerned Citizens because

Municipal ordinances give citizens an independent right of action

to  enforce  zoning laws;15 Concerned Citizens did  not  make  an

assertion  upon  which the Cizeks relied, and statements  by  the

Municipality could not have estopped the group.16

          Laches  is a somewhat closer call.17  The Cizeks assert

that  laches should have barred Concerned Citizens' suit  because

it  waited  more  than three years to sue after Code  Enforcement

Manager  Brennan's decision declared the airstrip a nonconforming

use.

          We  recently  discussed the application  of  laches  in

Laverty v. Alaska Railroad Corp.18  There Laverty sued to enjoin a

contract  between  the  railroad  and  a  contractor  -  Flamingo

Brothers - fifteen months after learning of the contract and  his

potential  cause of action.  In the interim, Laverty "knew,  over

the  course of his one-year delay in bringing suit, that Flamingo

Brothers  was  spending  large  amounts  of  time  and  money  on

geotechnical   studies   to   support   its   land   use   permit

applications."19  We held that the trial court did not abuse  its

discretion in applying laches.

          By  contrast,  the Cizeks do not argue  that  Concerned

Citizens'  lawsuit was unduly delayed based on the  time-line  of

the Cizeks' ownership of the property.  In fact, they do not even

challenge the trial court's finding that Concerned Citizens filed

its  suit  shortly after learning that the Cizeks  purchased  the

property.  Instead, quoting Kohl v. Legoullon,20 the Cizeks assert

          that an aggrieved party must "file suit promptly once it is clear

the  transgressor  has  committed to  an  irrevocable  course  of

conduct."

          But here, the only transgressors seeking the protection

of  the  laches  defense were the Cizeks;  and  they  bought  the

property  in  the  fall of 1997.  Before the  Cizeks  bought  the

property, no other party had actively sought to re-establish  use

of the airstrip since 1996, when the Assembly stayed the Planning

Commission's decision to grant Dikes a conditional use.   Because

the  Cizeks  apparently concede that Concerned Citizens  did  not

learn  of  their ownership or their plans regarding the  airstrip

until  the spring of 1998, we hold that the trial court  did  not

abuse  its  discretion  in finding no undue  delay  in  Concerned

Citizens' June 1998 suit.

     D.   The Cizeks Waived Their Claim for Rule 37 Sanctions.21

          The  Cizeks  assert that the superior court abused  its

discretion  in  failing  to  assess sanctions  against  Concerned

Citizens after the court granted two of the Cizeks' three motions

to compel discovery.22  Concerned Citizens points out in response

that  Civil Rule 37 requires a hearing before awarding attorney's

fees  against a party, that the Cizeks never requested a hearing,

and  that a hearing was never held.  Concerned Citizens' argument

is  persuasive.  Because no hearing was requested on the  Cizeks'

motions  for  discovery sanctions, we conclude  that  Civil  Rule

37(a)(4) did not oblige the superior court to impose sanctions or

to  explain its rulings denying the Cizeks' motions.   Under  the

circumstances  presented, we find no abuse of discretion  in  the

court's decision to deny sanctions.

     E.   The Trial Court Did Not Abuse Its Discretion by Denying
          Motion for a New Trial.23
          
          The  Cizeks  argue  that the trial  court  should  have

granted their motion for a new trial because it decided the  case

based  upon an issue raised without notice shortly before  trial.

They  claim  that  they  were prejudiced  by  the  trial  court's

pretrial  finding that McElhany's and Evans's use of the airstrip

was  unknown  and  not  consented to by the property  owners  and

therefore  could not preserve the nonconforming use.  The  Cizeks

also  claim  that the trial court's decision essentially  shifted

the burden of proof to them to prove that legal use continued the

nonconforming  use, rather than placing the burden  on  Concerned

Citizens to show a cessation of use.

          Yet  it  seems clear that at all times the issue before

the  trial  court  was  whether the  airstrip  was  a  continuing

nonconforming use.  To prevail as plaintiffs, Concerned  Citizens

bore  the  burden of showing that there was no legal use  of  the

airstrip for a period of at least one year.24  Regardless of what

legal  theories Concerned Citizens advanced to meet  its  burden,

the  dispositive  legal  issue always involved  the  question  of

whether  there  was  sufficient legal  use  of  the  airstrip  to

continue the nonconformity - not just whether McElhany and  Evans

were trespassers.

          It  became apparent early in the trial that the  Cizeks

planned   to   defend  against  Concerned  Citizens'   claim   of

interrupted  use  by  attempting to characterize  McElhany's  and

Evans's   use   as  sufficient  to  constitute  continuing   use.

Concerned Citizens, in contrast, hoped to establish that this use

was  too sporadic and that no other use existed.  The trial court

simply resolved this point by ruling as a matter of law, based on

undisputed  evidence, that McElhany's and Evans's use  could  not

qualify  as  a  continuous use, no matter how  frequent  it  was,

because  it  was  unknown  to  the  owners  and  had  never  been

authorized.  While this ruling certainly deprived the  Cizeks  of

an  anticipated  defense, they had no vested right  to  defend  a

legal theory that proved to be wrong.

          In  the  Cizeks'  memorandum and affidavits  supporting

their  motion  for  a  new trial, they claimed  to  have  several

additional  witnesses who could have testified regarding  use  of

the airstrip.  The Cizeks' attorney claimed to have chosen not to

pursue  these witnesses further during discovery because  of  the

associated  expenses and his belief that McElhany's  and  Evans's

testimony  would  be dispositive.  It is clear,  then,  that  the

Cizeks' decision not to develop or use this evidence was simply a

tactical choice.

          The  Cizeks  had  notice that  the  legal  use  of  the

airstrip  was  the  central issue in  the  case.   For  strategic

reasons, they failed to pursue some witnesses and evidence during

discovery.  It is also evident that the potential witnesses  they

identified had little, if any, additional evidence to provide had

the   trial   court   granted  their  motion.    Their   tactical

miscalculation affords them no right to another  trial.   In  any

event,  we note from our review of the Cizeks' motion for  a  new

trial  and  their other supporting pleadings that the  additional

testimony they proposed to offer would have added little relevant

information concerning the actual use of the airstrip.  For these

reasons,  we  hold  that  the  trial  court  did  not  abuse  its

discretion when it denied the Cizeks' motion for a new trial.

     F.   The   Cizeks  Should  Not  Be  Enjoined  from   Storing
          Airplanes on the Property.
          
          The   superior  court's  final  judgment   includes   a

provision  enjoining the Cizeks from storing airplanes  on  their

property.   The  Cizeks  point out that AMC 21.40.115.C.5  allows

aircraft  storage  as an accessory use in an R-10  district,  and

they   request  that  the  injunction  be  modified  to   require

compliance  with  current zoning regulations without  prohibiting

this  lawful  use.  Concerned Citizens acknowledges that  storing

aircraft is a permitted use under R-10 zoning and agrees that the

injunction  should  be corrected to allow the activity.   Because

the  Cizeks'  point  appears  to be well  taken,  we  direct  the

superior  court to amend the injunction on remand to  enable  the

Cizeks to store airplanes on their property as allowed by current

zoning ordinances.

IV.  CONCLUSION

          The decision of the superior court is AFFIRMED.

          In the Supreme Court of the State of Alaska



Jennifer and Joseph Cizek,      )
                                ) Supreme Court No. S-09574
                                   Appellant(s),       )
                   v.           )            Order
                                )   Petition for Rehearing
Concerned Citizens of Eagle River,             )
et al.,                         )
                                )
                                    Appellee(s).)        Date  of
Order: 6/14/02
                                )
Trial Court Case # 3AN-98-07307CI

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

     On  consideration  of the Petition for Rehearing,  filed  on
February 11, 2002,

     It is Ordered:

          1.   The  petition  is  GRANTED as  to  the  point
               raised in paragraph 7 of the petition and  is
               DENIED as to all other points.

          2.   The  opinion previously issued in this  case,
               Opinion  No.  5528  (February  1,  2002),  is
               WITHDRAWN  and REPLACED by Opinion No.  5584,
               which is attached to this order.
     
     Entered by direction of the court.

                                   Clerk of the Appellate Courts


                                   
                                   Marilyn May



Supreme Court Order on Petition for Rehearing
Re: Cizek v. Concerned Citizens of Eagle River
File No. S-9574
Page Two


cc:  Supreme Court Justices
     Judge Shortell
     Trial Court Appeals Clerk
     West Publishing
     Other Publishers

Distribution:

     William S Cummings
     Ashburn & Mason
     1130 West Sixth  Avenue   #100
     Anchorage AK 99501

     Suzanne Ewy
     Law Office of Suzanne Ewy
     P O Box 2125
     Barrow AK 99723

_______________________________
     1      We   use   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," Balough  v.  Fairbanks
North  Star Borough, 995 P.2d 245, 254 (Alaska 2000), and  "adopt
the  rule  of law that is most persuasive in light of  precedent,
reason, and policy."  Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979).

     2    Anchorage Municipal Code 21.55.010 describes the intent
of the code regarding nonconforming uses:

               Within    the   zoning    districts
          established by this title .  .  .  there
          may exist . . . uses of land . . . 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 . . . .  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.
          
     3    516 P.2d 1206 (Alaska 1973).

     4    Id. at 1207-08.

     5    Id. at 1209-10.

     6    Id.

     7    Id.

     8    AMC 21.55.010.

     9    The relevant findings of the trial court stated:

          17.   From 1986 through 1990, the  Eagle
          River  Partnership owned  the  property.
          During that time neither the Eagle River
          Partnership, its individual members,  or
          any  of  its representatives maintained,
          flew on and off, stored airplanes on, or
          used  the strip for aircraft operations.
          No  maintenance of the strip took  place
          from  1982-1990,  and no  usable  planes
          were  stored on the property during that
          time. . . .
          
          20.   No  one except Leonard, Evans,  or
          McElhany  used or flew on  and  off  the
          strip from 1984 through 1990.
          
          21.   From  1985 to 1991, no  pilot  who
          used   the   strip   had   the   owners'
          permission  to  use  it.   Leonard  was,
          during  those  years, contractually  and
          legally  bound  not to use  it.   For  a
          period  of  at  least five  years,  from
          December 1985 through 1991, no one  with
          an  ownership  interest in the  property
          maintained the strip, or kept  airplanes
          there,  or gave permission for its  use,
          or acquiesced in its use.
          
     The court then ruled that:
     
          40.   The Leonards' legal right  to  use
          the  property as an airstrip  terminated
          with their settlement of the Eagle River
          Partnership  lawsuit  against  them   in
          December, 1985.
          
          41.   Pat  Leonard's use from  December,
          1985  through  the  date  he  was  given
          permission by Dike to use the  property,
          was   in   violation  of   his   written
          settlement  agreement with  Eagle  River
          Partnership and the Leonards' disclaimer
          of   interest.   This  renders  any  use
          during that time by Leonard insufficient
          to maintain a nonconforming use.  He had
          no   legal  right  to  allow  Evans   or
          McElhany  to use it as they did.   Their
          use,  as well as his, was non-consensual
          and   unknown  to  the  owners  of   the
          property.
          
          42.   Pursuant to A.M.C. 21.55.030,  the
          valid nonconforming use that existed  in
          1985  terminated,  as the  nonconforming
          use  of the property ceased for a period
          of  more  than  one  year.   Evans'  and
          McElhany's use that was unknown  to  the
          owners  and unconsented to by them  will
          not  operate to preserve a nonconforming
          use  that effectively ended in December,
          1985.
          
     10     We note that federal regulations of private airstrips
define  private use to exclude use unauthorized by  the  airstrip
owner.   See  14 C.F.R.  157.2 ("Private use means available  for
use  by  the  owner  only  or  by the  owner  and  other  persons
authorized by the owner.") (emphasis added).

     11    We "exercise our independent judgment when interpreting
and  applying statutes of limitations."  McDowell v.  State,  957
P.2d 965, 968 n.4 (Alaska 1998).

     12    AMC 21.25.010(B).

     13     Whether  the legal doctrines of estoppel  and  laches
apply  to  a  case  are questions of law to which  we  apply  the
substitution  of judgment standard of review.   State,  Dep't  of
Commerce  & Econ. Dev. v. Schnell, 8 P.3d 351, 355 (Alaska  2000)
(estoppel);  id.  at 358 (laches).  Under that standard  we  will
interfere  with  a  trial court's broad discretion  to  deny  the
application of estoppel or laches only when we have "a  firm  and
definite  conviction that a mistake has been  made."   Keener  v.
State, 889 P.2d 1063, 1066 (Alaska 1995).

     14    The defense of estoppel has four elements: (1) A party
substantially changes position; (2) in reliance on a promise made
by  another;  (3)  the reliance was either actually  foreseen  or
reasonably  foreseeable by the promisor; and (4)  enforcement  of
the promise is necessary in the interests of justice.  See Reeves
v. Alyeska Pipeline Serv. Co., 926 P.2d 1130, 1142 (Alaska 1996).

     15    See AMC 21.25.050.

     16     See  28  Am.  Jur. 2d, Estoppel  &  Waiver   32,  131
(2000).

     17     Laches has two elements: the defendant must show  (1)
that  the  plaintiff has unreasonably delayed in filing suit  and
(2)  that the delay caused the defendant undue harm or prejudice.
See  City & Borough of Juneau v. Breck, 706 P.2d 313, 315 (Alaska
1985).

     18    13 P.3d 725, 729 (Alaska 2000).

     19    Id.

     20    936 P.2d 514, 517 (Alaska 1997).

     21    We review a trial court's decisions regarding discovery
sanctions under Civil Rule 37 for an abuse of discretion.  Glover
v. Sager, 667 P.2d 1198, 1203-04 (Alaska 1983).

     22     The  Cizeks base their argument on Alaska Civil  Rule
37(a)(4), which provides:

               If  the motion [to compel] is granted or
          if  the disclosure or requested discovery  is
          provided  after  the motion  was  filed,  the
          court  shall, after affording an  opportunity
          to  be  heard, require the party or  deponent
          whose conduct necessitated the motion or  the
          party  or  attorney advising such conduct  or
          both  of  them  to pay the moving  party  the
          reasonable  expenses incurred in  making  the
          motion, including attorney's fees, unless the
          court finds that the motion was filed without
          the movant's first making a good faith effort
          to obtain the disclosure or discovery without
          court  action,  or that the opposing  party's
          nondisclosure,  response  or  objection   was
          substantially   justified,  or   that   other
          circumstances  make  an  award  of   expenses
          unjust.
          
     23     The  trial  court  has broad discretion  in  deciding
whether to grant or deny a motion for a new trial.  Buoy  v.  ERA
Helicopters,  Inc., 771 P.2d 439, 442 (Alaska 1989).   We  review
the  trial  court's denial of a motion for a new trial under  the
abuse   of   discretion  standard.   State  v.  Municipality   of
Anchorage, 805 P.2d 971, 973 (Alaska 1991).

     24    See AMC 21.55.030(C).