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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cabana v. Kenai Peninsula Borough (7/12/2002) sp-5594

Cabana v. Kenai Peninsula Borough (7/12/2002) sp-5594

     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


DORIS CABANA, VIOLA JERREL,   )
and NANCY HILLSTRAND,         )    Supreme Court No. S-9994
                              )
             Appellants,                )    Superior Court No.
                              )    3KN-99-502 CI
     v.                       )
                              )    O P I N I O N
KENAI PENINSULA BOROUGH, )
                              )    [No. 5594 - July 12, 2002]
             Appellee.             )
________________________________)



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

          Appearances:  Robert C. Erwin and Roberta  C.
          Erwin,  Erwin  &  Erwin, LLC, Anchorage,  for
          Appellants.   Holly  B.  Montague,  Assistant
          Borough Attorney, Soldotna, for Appellee.

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

          FABE, Chief Justice.


I.   INTRODUCTION

          The  Kenai  Peninsula Borough (KPB) Assembly passed  an

ordinance  in  March  1999, exchanging  forty  acres  of  borough

property  near  Homer  (the Homer parcel)  for  twenty  acres  of

property  near Anchor Point owned by Clifford Shafer (the  Shafer

parcel).  The Borough had appraised the Shafer parcel at  $24,500

and the Homer parcel at $33,700.  The same day that it passed the

exchange  ordinance,  the KPB Assembly  passed  a  resolution  to

classify the Homer parcel as light industrial with a variance for

stockpiling  material and the operation of  heavy  equipment  and

with  restrictions on the use and development  of  the  property.

Doris Cabana, Viola Jerrel, and Nancy Hillstrand are taxpayers of

the Kenai Peninsula Borough who live within one mile of the Homer

parcel.   They  filed suit in superior court,  seeking  an  order

determining that the KPB Assemblys classification resolution  was

an  improper  exercise  of zoning power and  declaring  void  the

ordinance  authorizing the exchange.  The superior court  granted

KPBs  cross-motion for summary judgment, and Cabana appeals  that

decision.   We  affirm  because there  is  no  genuine  issue  of

material  fact  regarding  KPBs  appraisal  procedures.   KPB  is

therefore entitled to judgment as a matter of law.

II.  FACTS AND PROCEEDINGS

     A.   Factual History

          Clifford  and Cheryl Shafer owned a twenty-acre  parcel

of  land  in Anchor Point.  Approximately one-half of the  Shafer

parcel is wetlands, and sixty-four of 105 parcels within a  half-

mile radius of the parcel are developed residentially.  Neighbors

of  the Shafer parcel opposed Shafers two applications to operate

a  material  site1 for gravel extraction.  The first  application

was denied and, after Shafer applied the second time, the Coastal

Consistency Commission began reviewing the impact of  a  material

site  on the wetlands.  Facing continuing opposition by neighbors

and  potentially prohibitive expense as a result  of  the  review

process,  Shafer  approached KPB with an offer  to  exchange  his

parcel for the Homer parcel owned by KPB.

          Unlike  the Shafer parcel, the forty-acre Homer  parcel

shares its borders primarily with industrial sites, including  an

asphalt  plant, the borough landfill, and a State  Department  of

Transportation maintenance yard.  One-third of the  Homer  parcel

has  been identified as wetlands.  Just as neighbors had  opposed

Shafers application for a material site permit, several neighbors

of  the  Homer  parcel,  including the  plaintiffs,  vociferously

          opposed the land exchange.

          As  part  of  a  1999 reappraisal of all  land  in  the

Homer/Anchor Point area, KPB Land Appraiser Louise Paul appraised

the  two  parcels  of land in January 1999.  Paul  appraised  the

Shafer  parcel  at $24,500 and the Homer parcel at  $33,700.   In

reviewing  the appraisals in February 1999 Paul reaffirmed  those

valuations.  Her supervisor, Appraisal Manager Gary Fandel, noted

that  the Homer parcel may have greater future potential  due  to

commercial  and  light industrial development  occurring  in  the

vicinity.

          On June 1, 1999, the KPB Assembly held a public hearing

on  Ordinance  99-17 and its companion Resolution  99-050,  which

proposed classifying the Homer parcel as light industrial with an

allowance for stockpiling and operation of heavy equipment.2  The

three  plaintiffs again commented on the proposed classification.

At  the  conclusion of the hearing, the KPB Assembly adopted  the

resolution.   Also  on  June 1, 1999, the KPB  Assembly  approved

Ordinance 99-17, which set out findings regarding the benefits of

the  land  exchange, authorized the exchange,  and  imposed  deed

restrictions  to preserve the recreational use of land  bordering

the  Homer  parcel and to protect the wetlands and streams.   The

ordinance  ordered:   The  borough land  will  be  classified  in

accordance  with KPB 17.10 prior to the exchange,  provided  that

this  land  may  be  used  for material stockpiling  and  related

activities   including  sorting  and  the  operation   of   heavy

equipment.  (Emphasis in original.)  The ordinance noted that the

proposed  exchange is of almost equal value, excluding the  value

of gravel resources on the Shafer parcel.

     B.   Procedural History

          In  July  1999 Cabana, Jerrel, and Hillstrand  (Cabana)

filed this suit challenging the classification and land exchange.3

Cabana moved for summary judgment in May 2000, claiming that  the

Homer  parcel was not exchanged at fair market value in violation

of  the  KPB Code based on three arguments: (1) the land was  not

          appraised at fair market value; (2) the exchange itself on the

new  appraised value for 1999 was not an exchange for fair market

value;  and  (3)  Louise Paul was not a qualified  appraiser  for

1999, under Kenai Peninsula Borough Ordinances, to determine fair

market  value.  KPB opposed the motion for summary  judgment  and

filed  a  cross-motion for summary judgment.  The superior  court

denied  Cabanas motion and granted KPBs cross-motion for  summary

judgment.  Cabana appeals the summary judgment order in favor  of

KPB.

III. STANDARD OF REVIEW

          We  review  a  grant or denial of summary  judgment  de

novo.4   Summary judgment is appropriate if no genuine  issue  of

material fact exists and the movant is entitled to judgment as  a

matter of law.5  When ruling on a motion for summary judgment, we

may consider any argument ascertainable from the record, even  if

the  superior court did not rule on it.6  We are not bound by the

reasoning  articulated by the superior court  and  can  affirm  a

grant  of  summary  judgment  on alternative  grounds,  including

grounds not advanced by the superior court or the parties.7   The

nonmoving party is the non-prevailing party on a summary judgment

motion.   Because  Cabana appeals the grant of KPBs  cross-motion

for  summary judgment, Cabana is the nonmoving, losing party with

regard  to that motion.  As such, facts are to be viewed  in  the

light most favorable to Cabana, and reasonable inferences are  to

be resolved in Cabanas favor.8

          Summary  judgment is inappropriate when the  affidavits

and  other  evidence  before the trial  court  establish  that  a

genuine issue of material fact exists.9  The court does not weigh

the  evidence  or witness credibility on summary  judgment.10   A

court  must  deny  a  motion for summary  judgment  if  there  is

contradictory evidence, or the movants evidence is  impeached  on

material  matters, because in such cases an issue of  credibility

exists.11

IV.  DISCUSSION

          The  issue  before  us on appeal is whether  the  trial

court  erred  in  granting KPBs motion for  summary  judgment  on

Cabanas claimed violations of substantive due process and the KPB

Code.12  KPB and Cabana have differing views regarding the  value

of the Homer parcel.13  But this factual dispute is immaterial to

our  conclusion  that  KPB  did  not  abuse  its  discretion   in

authorizing  the  land  exchange,  that  it  complied  with   the

statutory  procedural requirements, and that it did  not  violate

Cabanas  right to substantive due process.  We conclude that  the

trial  court  properly granted summary judgment in favor  of  KPB

because, even assuming the facts alleged by Cabana, the nonmoving

party, Cabana does not have a valid legal claim against KPB.14

     A.   KPB  Did Not Violate the KPB Code by Approving the Land
          Exchange.
          
          1.   Kenai Peninsula Borough Code  17.10.100(C) governs
               this land exchange.
               
          All  municipalities  have  the  power  to  acquire  and

dispose  of real property.15 Alaska Statute 29.35.090(a) provides

that  [t]he governing body shall by ordinance establish a  formal

procedure  for acquisition and disposal of land and interests  in

land  by the municipality.  The formal procedures governing  land

in  the  Kenai Peninsula Borough can be found in Kenai  Peninsula

Borough Code (KPBC)  17.10.090 and 17.10.100(C).  Kenai Peninsula

Borough Code  17.10.090 relates to land that is sold, leased,  or

otherwise disposed of and provides that [a]ll lands shall be sold

or  leased  at fair market value or fair market rental  value  as

determined  by  a  qualified  appraiser  except  as  provided  in

sections 17.10.100(I) and 17.10.120(D).  Kenai Peninsula  Borough

Code  17.10.100(C) governs exchange sales:

          The  assembly may by ordinance authorize  the
          exchange  of  land but only if the  ordinance
          authorizing  the  exchange  sale  contains  a
          finding that the exchange sale is in the best
          interests  of the borough and a statement  of
          the facts on which the finding is based.
          
Cabana  argues  that KPB violated KPBC  17.10.090  by  exchanging

properties that were not of equal market value.

          But  we  conclude that KPBC  17.10.100(C), rather  than

KPBC  17.10.090, applies to this case.  First, nothing in the KPB

Code  clearly  requires that land exchanges comply with  sections

other  than  17.10.100(C),  which  specifically  addresses   land

exchange sales.  The plain language of the code requires sales of

borough  land  to  be  at  fair market value,  but  it  does  not

expressly require exchanges of borough land to be at fair  market

value.   Second, Ordinance 99-17 clearly states that [t]he  mayor

is authorized, pursuant to KPB 17.10.100(C) to exchange the land.

Because it makes no mention of KPBC  17.10.090,16 it appears that

the  KPB Assembly only contemplated that KPBC  17.10.100(C) would

apply to this transaction.

          Third, it appears that the KPB Assembly roughly modeled

its  procedure  for exchanging borough land after  the  State  of

Alaskas  procedure  for exchanging state  land.   Alaska  Statute

29.65.090, which governs land exchanges, provides:

          The   director   and   a   municipality   are
          authorized  to exchange land or interests  in
          land when it is in the public interest.  Land
          or  interests  in land exchanged  under  this
          section must be of approximately equal value,
          including  the  nonmonetary value  of  public
          benefits.
          
Alaska Statute 38.50.020(a) provides:

          If  the director determines that the property
          to  be  exchanged is not equal  in  appraised
          fair  market value or if the value cannot  be
          ascertained  with reasonable  certainty,  the
          director  may  enter into an  exchange  on  a
          finding that the appraised fair market  value
          of the property to be received, together with
          the value of other public benefits, equals or
          exceeds  the value of the property which  the
          state will relinquish.
          
These statutes parallel the language of KPBC  17.10.100(C), which

is quoted above, and KPBC  17.10.120(D), which provides:

          The  assembly may authorize the sale of  land
          for  an  amount other than fair market  value
          only  if  the ordinance authorizing the  sale
          contains: (1) A finding that the sale for  an
          amount other than the fair market value is in
          the best public interest; (2) A statement  of
          the  facts on which the finding is based; and
          (3) The period of time during which the offer
          may be accepted.
          
          Finally,  KPBC  17.10.090 provides that  land  must  be

sold  or  leased  at  fair market value  except  as  provided  in

17.10.120(I)  and  17.10.120(D).  Kenai  Peninsula  Borough  Code

17.10.120(D) expressly permits sale of borough land at less  than

fair  market value if it is in the best public interest.17  Thus,

even  if  this  court  were  to apply KPBC   17.10.090  and  KPBC

17.10.120(D) rather than KPBC  17.10.100(C), the outcome in  this

case  would  be  the same:  KPB complied with KPB  ordinances  by

approving a land exchange based on express factual findings  that

the exchange was in the Boroughs best interest.

          2.  The land exchange complies with KPBC  17.10.100(C).

          The  Boroughs  power to manage and dispose  of  borough

land is to be liberally construed.18  Even if Cabana generates  a

genuine  issue  of  material  fact,  Cabana  has  the  burden  of

overcoming the presumption that proceedings of the governing body

of a municipality have been conducted in accordance with the law.19

Cabana  does  not  satisfy this burden  merely  by  pointing  out

anomalies  in  the  manner in which KPB  appraised  the  land  or

approved the land exchange.20  Because we conclude that  the  KPB

Assembly could reasonably determine that the land exchange was in

the  Boroughs best interest and it provided a statement of  facts

on   which  this  finding  was  based,  as  required  under  KPBC

17.10.100(C),  we  affirm  the  trial  courts  grant  of  summary

judgment to KPB.

          If   the  Borough  received  property  that  was  worth

substantially less than the property it gave up and  received  no

other  nonmonetary benefits, such an exchange arguably would  not

be   in   the  Boroughs  best  interest.   Accordingly,   it   is

understandable  that  the plaintiffs are troubled  by  the  Homer

parcels substantial drop in valuation from $79,200 to $33,700  in

one  years  time.   However, given the great  deference  afforded

municipal  action  and the presumption of government  regularity,

          this fact, even in tandem with the plaintiffs conflicting

appraisal,  does  not  create a genuine issue  of  material  fact

tending  to  show the kind of abuse of discretion  or  bad  faith

necessary to overcome the presumption of government regularity.21

          Our  decision in Norene v. Municipality of  Anchorage22

supports  our conclusion in this case.  In Norene,  we  found  no

abuse   of   discretion  where  the  Municipality  of   Anchorage

authorized   a  controversial  land  exchange.   The  challengers

alleged  that  the  appraisals were out  of  date  and  that  one

contained a $209,000 error.23  We concluded, however, that it was

not  the  courts  role to judge the expediency  or  necessity  of

measures relating to local government.24  Appraisers informed the

Anchorage Assembly that the land exchange was financially  sound,

and  the Assembly was aware of the varying estimates of the value

of the land it was giving up and the problems with the properties

it  was  acquiring.  Under these circumstances, we  affirmed  the

superior  courts  grant  of  summary judgment  in  favor  of  the

Municipality despite the factual disputes regarding the  accuracy

of  the  appraisals or the condition of the land involved in  the

exchange.25

          Similarly, we conclude that the KPB Assembly is in  the

best  position  to determine that the land exchange  was  in  the

Boroughs  best  interest.   There  is  evidence  that,  like  the

municipality  in  Norene, KPB weighed the pros and  cons  of  the

exchange  prior to approving it.  The planning director  candidly

informed  the  mayor  that [p]otential negative  impacts  to  the

borough  for  this  exchange include the  simple  loss  of  value

($33,500  vs.  $24,500) and setting of preceden[t] for  resolving

land  use  conflicts  through exchanges or  purchases.   But  she

justified her recommendation that the mayor approve the  exchange

by  listing the same findings of fact as those ultimately adopted

by  the KPB Assembly in Ordinance 99-17. Those findings indicated

that the exchange was in the Boroughs best interest based on  the

value  of  the  properties and the nonmonetary  benefits  of  the

          exchange.26

          Moreover,  the undisputed evidence indicates  that  the

Borough  complied  with the KPB Code in approving  the  exchange.

The Borough based its approval of the exchange on an appraisal by

a  qualified appraiser.27  The appraisal of the Homer parcel  was

performed  as  part of a comprehensive program undertaken  for  a

period  of  ten months, in which 13,000 parcels were reappraised.

Many   of   the  prior  appraised  values  were  adjusted,   some

substantially.   Only after these appraisals were  completed  did

the   planning   department  contact  the  assessing   department

regarding the Homer and Shafer parcels.  On February 1, 1999, the

appraisal  manager stated that the appraisals of  the  Homer  and

Shafer  parcels were still accurate.  The fact that the value  of

the  Homer  parcel was appraised before the assessing  department

was  informed of the proposed exchange tends to indicate that the

Borough  acted  in  accordance  with  the  law,  and  Cabana  has

presented insufficient evidence to support its position that  the

appraisal  and  exchange process in this case  violated  the  KPB

Code.

          In  sum, the land exchange effected by Ordinance  99-17

satisfies  KPBC   17.10.100(C)s requirement  that  the  ordinance

authorizing  the  exchange sale contain[ ]  a  finding  that  the

exchange  sale  is  in the best interests of the  borough  and  a

statement of the facts on which the finding is based.

     B.   KPBs  Approval  of the Land Exchange Does  Not  Violate
          Cabanas Right to Substantive Due Process.
          
          Substantive  due process is denied when  a  legislative

enactment  bears  no  reasonable  relationship  to  a  legitimate

governmental purpose.28  As discussed above, the KPB Assembly made

several  factual findings regarding the benefits to  KPB  of  the

land  exchange.  For example, KPB Ordinance 99-17 indicates  that

the  exchange  will reduce a land use conflict  and  protect  the

public safety and welfare by restricting future use of the  Homer

parcel.  These are legitimate governmental purposes, and they are

laid out in goal 5.5 of the Boroughs comprehensive plan to reduce

          land use conflicts and in KPBC  17.10.010.29  Cabana has offered

no evidence that reducing land use conflict and protecting public

welfare and safety are not legitimate governmental purposes.

          Ordinance   99-17   bears  a   fair   and   substantial

relationship  to  the  Boroughs  policy  of  reducing  land   use

conflicts and protecting public welfare and safety.  A  land  use

dispute  existed over Clifford Shafers application to  operate  a

material site on his property in Anchor Point.  Numerous  members

of  the  public  voiced  their opposition to  granting  Shafer  a

material  site  permit  and  the Coastal  Consistency  Commission

initiated a review of the potential impact of a material site  on

the Shafer parcel.  Shafer approached the Borough to exchange his

property,  which  is  one-half wetlands and  is  in  a  primarily

residential neighborhood, with KPBs parcel in Homer, which is one-

third  wetlands and abuts an asphalt plant, the borough landfill,

and  a  State  Department  of  Transportation  maintenance  yard.

Although  there  was public opposition to the exchange,  the  KPB

Assembly  mitigated the potential harm to neighbors of the  Homer

parcel by imposing restrictions on its use and by classifying the

Homer parcel as light industrial rather than heavy industrial.

          The  elected borough assembly, rather than the  courts,

should  decide between competing notions of public policy.30   We

conclude  that  there  is  a  fair and  substantial  relationship

between  KPBs  approval of the land exchange and  the  legitimate

governmental goals of reducing land use conflicts and  protecting

public   health  and  safety.   Therefore,  the  alleged  factual

disputes  proffered by Cabana are immaterial and summary judgment

was  properly  granted  in favor of KPB on  the  substantive  due

process claim.

     C.   The  Appraisal of the Homer Parcel Did Not Violate  the
          KPB  Code  or  Substantive Due Process  by  Failing  To
          Account for the Light Industrial Classification.
          
          Cabana  next  argues  that the KPB Assembly  based  its

approval of the land exchange on an appraisal of the Homer parcel

that failed to account for the reasonably probable classification

          of that parcel as light industrial.  KPB argues that the

classification would not have impacted the value  placed  on  the

Homer  parcel  by  the  KPB  Assessing  Department.   The  record

supports this assertion.

          Gary Fandel, the appraisal manager and appraiser Louise

Pauls  supervisor  at the time of the valuation,  stated  in  his

deposition  that  the  Homer parcel is in an  unzoned  area.   He

testified  that an industrial classification in an  unzoned  area

does  not  affect the valuation by the assessing department.   He

added that unzoned vacant or raw land is valuated by direct sales

comparison,  whereas  land  in  a  zoned  area  is  appraised  by

accounting for the potential for development.31  The Director  of

Assessing,  Jim  Lawyer, also stated in his  affidavit  that  the

Shafer and Homer parcels are both in unzoned areas.  He testified

that the assessing department would not have any reason to change

the  appraised value of the Homer parcel for 2000 from  its  1999

value.    The   undisputed  evidence  indicates  that  industrial

classifications  do  not affect KPBs valuations  of  land  in  an

unzoned  area  and  the  Homer parcel was  in  an  unzoned  area.

Therefore, we need not determine whether Paul accounted  for  the

light industrial classification in appraising the Homer parcel.

          KPBs procedures for appraising land comply with the KPB

Code.   Kenai  Peninsula Borough Code  17.10.250(J) defines  fair

market value as the estimated price that land would bring  in  an

open market and under the then prevailing market conditions in  a

sale between a willing seller and a willing buyer both conversant

with the property and with prevailing general price levels.   Jim

Lawyer described in his affidavit the actual practice of the  KPB

Assessing Department in appraising land:

          When   establishing  a  value  for  a  parcel
          current  market sales are used  to  determine
          fair market value.  Current market sales take
          into  consideration the market  trends  in  a
          neighborhood.  Establishing the  value  of  a
          piece  of  raw  land  which  is  adjacent  to
          industrial  uses  would take the  surrounding
          trends and land use into consideration.
          
          Cabana   offered   no   evidence   that   Paul    acted

          inconsistently with what appears to be a policy of excluding from

consideration    potential   industrial   classifications    when

appraising a parcel of land in an unzoned area, or that  any  KPB

ordinance  forbids  this  practice.   Rather,  Cabana  relies  on

Martens  v.  State,  in  which  we  stated  that  it  is  a  well

established  rule  of  law that a jury, in determining  the  fair

market value of condemned land, may consider zoning changes which

were  reasonably  probable  at the time  the  land  was  taken.32

However, Martens is not controlling because here it is KPB rather

than a jury that determined fair market value and Cabana has  not

overcome the presumption of government regularity.

          Cabana  has  failed  to establish  that  Paul  was  not

qualified  or  that  the appraisal procedures  were  flawed.   We

therefore  conclude that KPBs failure to consider the  subsequent

light  industrial  classification of the  Homer  parcel  did  not

violate the KPB Code or Cabanas right to substantive due process.

V.   CONCLUSION

          A  presumption of government regularity applies in this

case  and  we  defer  to the factual determinations  of  the  KPB

Assembly.  Cabana has failed to establish that there is a factual

dispute   regarding  KPBs  appraisal  procedures  or   that   its

procedures  violate  the  KPB Code or  substantive  due  process.

Accordingly we AFFIRM the superior courts order granting  summary

judgment to KPB.33



_______________________________
     1     Under  KPB Ordinance 96-14, a material site is defined
as  an  area  used  for  extracting, quarrying,  stockpiling,  or
conditioning gravel, sand, rock, peat, pumice, pumicite, cinders,
clay sod, topsoil, or other similar resources.

     2    In the two weeks before Ordinance 99-17 was introduced,
the Kachemak Bay Advisory Planning Commission (KBAPC) and the KPB
Planning  Commission  each held a public  meeting  regarding  the
classification  of  the Homer parcel.  The three  plaintiffs  and
other  members of the public voiced their concerns regarding  the
development  of the wetlands, wildlife protection,  noise,  water
contamination,  and  fears  that  the  entire  area  will  become
industrial.  The KBAPC passed a motion to support Ordinance 99-17
with  the  proviso that the parcel be classified light industrial
with  a  variance to accommodate gravel storage, that a  100-foot
buffer  be  maintained,  and that the  wetlands  not  be  filled,
dredged,  or  developed except for road access.  The KBAPC  noted
that  the Light Industrial classification reflects the wishes  of
the public.  The KPB Planning Commission approved the proposal to
recommend to the KPB Assembly the light industrial classification
with a variance, which led to the Assemblys passage of Resolution
99-050 and Ordinance 99-17.

     3     Prior  to filing this suit, the plaintiffs raised  the
same  issues  in  an administrative appeal to the superior  court
challenging the classification (Resolution 99-050) and  the  land
exchange (Ordinance 99-17).  In September 1999 the superior court
dismissed  the appeal as an inappropriate appellate challenge  of
legislative action.  The plaintiffs appealed and we affirmed, but
specifically   permitted  Cabana  to  obtain   review   of   KPBs
classification  decision through this action.   Cabana  v.  Kenai
Peninsula Borough, 21 P.3d 833, 836 n.12, 838 (Alaska 2001).

     4     United  Airlines, Inc. v. Good Taste, Inc.,  982  P.2d
1259,  1262 (Alaska 1999); Jackinsky v. Jackinsky, 894 P.2d  650,
654 (Alaska 1996).

     5     Alaska R. Civ. P. 56(c); accord Jackinsky, 894 P.2d at
654.

     6    Jackinsky, 894 P.2d at 654.

     7     Hoffman  Constr. Co. of Alaska v. U.S.  Fabrication  &
Erection, Inc., 32 P.3d 346, 351 (Alaska 2001).

     8     See  Thoma v. Hickel, 947 P.2d 816, 818 (Alaska 1997);
see  also  Chilton-Wren v. Olds, 1 P.3d 693, 696  (Alaska  2000);
Ellis  v.  City of Valdez, 686 P.2d 700, 702 (Alaska 1984).   The
fact  that  the  issue of fair market value is essential  to  the
resolution of both parties motions for summary judgment does  not
alter  our obligation to draw all inferences of fact relevant  to
the  cross-claim for summary judgment, including the fair  market
value issue, in favor of Cabana.

     9    Peterson v. Wirum, 625 P.2d 866, 869-70 (Alaska 1981).

     10     Meyer  v.  State,  Dept  of  Revenue,  Child  Support
Enforcement Div. ex rel. N.G.T., 994 P.2d 365, 367 (Alaska 1999).

     11    Bauman v. Day,  892 P.2d 817, 826 (Alaska 1995).

     12     Cabanas  complaint  does not list  causes  of  action
separately.    The  superior  court  correctly  interpreted   the
plaintiffs  complaint as alleging a violation of substantive  due
process,  a  violation  of  the KPB Code,  and  improper  zoning.
Cabana  now concedes that the classification was not an  exercise
of zoning power and so we need not reach that issue.

     13     Ron  Johnson submitted an expert affidavit  that  the
Homer  parcel has a value of $56,000 to $64,000, which  conflicts
with  KPBs  appraisal of $24,500.  In addition, the Homer  parcel
was valuated at $79,200 for every year from 1994 to 1998.  But in
1999 Louise Paul appraised the Homer parcel at $33,700.

     14     Cf. Whaley v. State, 438 P.2d 718, 720 (Alaska  1968)
(holding  that  a  factual  question is considered  material  and
thereby prevents the entry of summary judgment if, as a matter of
law, the appellant would then have a basis for a claim).

     15    AS 29.35.010(8).

     16     In  a  memorandum to the mayor recommending the  land
exchange, Planning Director Lisa Parker wrote:

          Rationale
          17.10.090   states,  The  assembly   may   by
          ordinance authorize the exchange of land  but
          only   if   the  ordinance  authorizing   the
          exchange  sale  contains a finding  that  the
          exchange sale is in the best interests of the
          borough and a statement of the facts on which
          the finding is based.
          
Parker  quotes the best interests language of KPBC  17.10.100(C),
but  asserts  that it is from KPBC  17.10.090.  Her intention  to
apply  KPBC  17.10.100(C) is subsequently made clear in an almost
identical  memorandum to the mayor in which she  correctly  cites
that section.

     17    KPBC  17.10.120(D) provides:

          The  assembly may authorize the sale of  land
          for  an  amount  other than the  fair  market
          value  only if the ordinance authorizing  the
          sale contains:
          
          1.   A  finding that sale for an amount other
               than  fair market value is in  the  best
               public interest;
               
          2.   A   statement  of  facts  on  which  the
               finding is based; and
               
          3.   The  period  of  time during  which  the
               offer may be accepted.
               
     18    AS 29.35.400.

     19     McCormick  v. City of Dillingham, 16  P.3d  735,  738
(Alaska  2001)  (internal citation and  quotation  omitted).   We
first  applied  the  presumption  of  government  regularity   in
Liberati  v.  Bristol Bay Borough, 584 P.2d  1115,  1117  (Alaska
1978),  where  we affirmed the superior courts order  of  summary
judgment  in favor of the Borough on a claim attacking a  borough
ordinance imposing a sales tax on all raw fish caught within  the
borough.   We  held  that the plaintiffs,  the  nonmoving  party,
failed to offer any evidence to overcome the presumption that the
municipality  complied  with  the statutory  requirements  for  a
public  hearing  by making copies of the tax ordinance  available
and  hearing all persons who wish to be heard.  Id.  In  City  of
St. Marys v. St. Marys Native Corp., 9 P.3d 1002, 1007-08 (Alaska
2000),  we  again  applied the presumption in  holding  that  the
municipality  could repeal a tax exemption by  ordinance  without
public vote.  Finally, in McCormick, 16 P.3d at 738, we held that
the  plaintiff  had  failed  to present  sufficient  evidence  to
overcome the presumption that the city lawfully passed its  sales
tax.

     20     See  McCormick, 16 P.3d at 738-39 (Although McCormick
can  point to anomalies in the codification of the sales  tax  in
1977, he has not established that the city failed to comply  with
the law.).

     21    See Norene v. Municipality of Anchorage, 704 P.2d 199,
202   (Alaska   1985)   (reviewing  for   abuse   of   discretion
municipalitys  decision  to consummate  land  exchange  based  on
allegedly erroneous appraisals of land in question).

     22    704 P.2d 199 (Alaska 1985).

     23    Id. at 202.

     24     Id.,  quoting  2 E. McQuillin, The Law  of  Municipal
Corporations  10.33, at 825 (3d ed. 1979).

     25    Id.

     26     The  planning director and the KPB Assembly made  the
following factual findings: (1) Shafer had applied for a material
site  permit for the Shafer parcel; (2) the public was  concerned
about  the  potential harm to the environment that  would  result
from  the permits issuance; (3) Shafer had agreed to restrictions
on  the  use and development of the Homer parcel; (4) the  Shafer
parcel and the surrounding area would be most appropriately  used
for   a   single-family   residence  and   for   recreation   and
preservation;  (5) the Borough comprehensive  plans  goal  is  to
reduce land use conflicts; (6) the proposed exchange is of almost
equal  value,  excluding  the value of gravel  resources  on  the
Shafer  parcel; and (7) restrictions on future use of  the  Homer
parcel will help protect public safety and welfare.

     27    Louise Pauls name appeared as being an active appraiser
as  of  1998,  and  in August 1999 Jim Lawyer,  the  Director  of
Assessing,  testified  by  affidavit  that  she  is  a  certified
assessor/appraiser.

     28    Norene v. Municipality of Anchorage, 704 P.2d 199, 202
(Alaska 1985).

     29    KPBC  17.10.010 states:

               A.    It  is  the  policy of  the  Kenai
          Peninsula Borough to manage all borough owned
          and municipal entitlement lands and resources
          to provide for:
          
               1.      The    efficient    acquisition,
          management,  classification and  disposal  of
          borough lands;
          
                      2.    The  promotion  of  orderly
          development;
                     3.    The  protection and  orderly
          management of the boroughs natural resources;
                     4.    The  preservation of borough
          lands  and  resources for  wildlife  habitat,
          scenic   value,   recreational   needs,   and
          historic needs;
                    5.   The retention of borough lands
          essential  for  health, safety and  education
          needs;
                     6.   The orderly disposal of lands
          and  resources in a manner which is  fair  to
          all.
          
     30    Id.

     31     Cabana  notes that Lawyer testified that commercially
zoned   property  would  have  a  higher  appraised  value   than
residential  zoning.  Because Cabana does not  dispute  that  the
Homer  parcel  is  not  commercially  zoned,  this  testimony  is
irrelevant.

     32    554 P.2d 407, 409 (Alaska 1976).

     33     Cabana  argues that KPB violated the publication  and
notice  requirements  of  KPBC  01.12.040  and  KPBC   01.12.020.
Because  Cabana  failed  to raise this issue  below,  we  do  not
consider  it here.  See Krossa v. All Alaskan Seafoods, Inc.,  37
P.3d 411, 418-19 (Alaska 2001).