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Ogar v. City of Haines (7/19/2002) sp-5597
Ogar v. City of Haines (7/19/2002) sp-5597
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
PHYLLIS OGAR, )
) Supreme Court No. S-9812
Appellant, )
) Superior Court No. 1JU-98-371
CI
v. )
) O P I N I O N
CITY OF HAINES, )
) [No. 5597 - July 19, 2002]
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: Tony Strong, Law Offices of
Tony Strong & Associates, Juneau, for
Appellant. Ronald W. Lorensen and Merrill
Lowden, Simpson, Tillinghast, Sorensen &
Longenbaugh, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
I. Did a citys prior failures to require property owners
to remove structures that violated its right-of-way and setback
requirements equitably estop the city from requiring the current
landowner to remove them? Because the city asserted no position
by conduct or word, a necessary element for equitable estoppel
was absent. We therefore affirm the grant of summary judgment
for the city. We also affirm the superior courts award of
attorneys fees against the landowner.
II. FACTS AND PROCEEDINGS
This appeal concerns claims Phyllis Ogar brought
against the City of Haines in 1999, but it originates in the
citys dealings with the prior owners of Ogars land.
In June 1989 Gloria and Larry Schmidt asked the City of
Haines to vacate a ten-foot portion of Pyramid Drive, a dedicated
right-of-way owned by the city. Pyramid Drive bordered the
Schmidts property on the east. The city council approved the
vacation. To complete the vacation, the Schmidts were to have
the land surveyed and replatted by a registered land surveyor,
and were to pay the city the current value of the vacated land.
Because the Schmidts failed to take these steps, the vacation was
not completed. In July 1990 the Schmidts nonetheless applied for
a land use permit to build a residential garage. They submitted
with their permit application a hand drawing of the proposed
garage, the existing garage, and their house. The drawing
indicated that the new garage would be set back forty feet from
F.A.A. Road on the north and ten feet from the Pyramid Drive
right-of-way on the east. The planning commission approved the
permit (Permit No. 90-25) that same month. The Schmidts then
built the garage, but instead of sitting ten feet from the
Pyramid Drive right-of-way as depicted in the drawing, the garage
encroached on the citys right-of-way by 20.8 feet. The city did
not inspect the property before or after the garage was built and
did not require an as-built survey.
Phyllis Ogar claimed that she and her late husband
purchased the Schmidts property without knowing of the
encroachment. Neither the city nor Ogar became aware of the
encroachment until 1997, when a neighbor reported that Ogar was
clearing wood from the right-of-way, and the city investigated.
Ogar applied then for a thirty-foot vacation of the right-of-way
to accommodate the garage, a ten-foot overhang extension on the
garage, and a fuel tank beside the garage. The city
administrator recommended the vacation, noting that the right-of-
way had limited use because one part of Pyramid Drive narrowed to
thirty feet, but recommended that the city retain the rest of
Pyramid Drive as a possible utility right-of-way. He informed
the planning commission that the vacation would not restrict
access to other properties.
In August 1998 the city planning commission conducted a
hearing on Ogars vacation application. Ogar requested the
vacation to allow compliance with the citys land use code and to
obtain clear title to her property, which she argued was
encumbered by the encroachment. Members of the community spoke
out against the vacation during the hearing. Members of the
community had submitted a petition and letters to the planning
commission earlier that month to oppose granting any new vacation
of rights-of-way.
The commission approved a fifteen-foot vacation and a
setback variance for Ogar to accommodate the garage for which the
Schmidts had obtained the permit; but the city required Ogar to
remove the ten-foot overhang and the fuel tank, have the property
replatted by a surveyor, submit the plat to the city, and pay the
current value of the vacated property.1 The city referred to the
overhang as the removable shed because members of the community
stated at the hearing that the Schmidts had bolted it to the
permanent garage, making it easily removable. The city decided
to reimburse Ogar for the property taxes she paid to the Haines
Borough for the ten-foot vacation the borough mistakenly carried
on its tax rolls after the city approved the Schmidts request for
vacation in 1989. Ogar satisfied the survey, replat, and payment
requirements in March 1999. But the overhang and fuel tank
remain. When Ogar removes those improvements, the city will
obtain the new plat from the surveyor for signing and recording.
In her original 1998 complaint, Ogar sought specific
performance from Larry Schmidt to purchase sufficient land from
the city to unencumber the property and meet all city zoning
ordinances. She alternatively sought damages to compensate for
that purchase and for the difference between the value of the
property Ogar believed she was purchasing and its actual value
when she purchased it. Ogar amended the complaint to join the
city in January 1999.
Her amended complaint alleged that the city was
negligent in failing to correct the encroachment because the city
failed to inspect the property in conjunction with Permit No. 90-
25. Ogar asked the superior court to equitably estop the city
from requiring her to remove the overhang and the fuel tank and
from trying to collect any money from [her]. Ogar also sought an
order to vacate enough of the right-of-way to bring her garage
into compliance with zoning and setback requirements.
The city moved to dismiss the claims under Alaska Civil
Rule 12(b)(6) and alternatively sought summary judgment under
Alaska Civil Rule 56(b). The superior court granted the citys
summary judgment motion, holding that the citys failure to assert
its rights to the right-of-way was not sufficient to establish
elements necessary for equitable estoppel. The superior court
awarded the city attorneys fees of $3,573.50, twenty percent of
the citys reasonable, actual fees.
Ogar appeals the grant of summary judgment and the
award of attorneys fees.
III. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo.2
Because the conclusion that equitable estoppel does not apply is
a question of law, we review that conclusion de novo.3 We review
an award of attorneys fees for abuse of discretion, reversing
only if the award was arbitrary, capricious, manifestly
unreasonable, or . . . stem[med] from an improper motive.4
B. The Trial Court Did Not Err in Granting Summary
Judgment to the City on the Issue of Equitable
Estoppel.
A party claiming equitable estoppel must prove four
necessary elements: (1) assertion of a position by conduct or
word, (2) reasonable reliance thereon, . . . (3) resulting
prejudice, . . . [and (4)] the estoppel will be enforced only to
the extent that justice so requires.5
We hold that the city made no assertions of position to
Ogar or her predecessors sufficient to satisfy the first element.
Ogar argued that the combination of granting the vacation to the
Schmidts although the vacation was ultimately incomplete and
issuing the building permit for the new garage fulfilled the
first element for equitable estoppel. The superior court
concluded that the city did not make any positive assertions. It
held:
[t]he alleged acts by the City do not
constitute acts on which either the Schmidts
or the Ogars could have relied regarding the
encroachment at issue here and do not support
finding exceptional circumstances in which
estoppel should be applied. . . . The
original building permit did not authorize
either an encroachment or the additional 10
foot overhang.
The superior court relied on State v. Simpson,6 in
which we considered whether the state could force the landowner
off property that he and his predecessors believed belonged to
him. The landowner made improvements that cost $28,000.7 The
superior court in Simpson found that the combination of forty
years of nonuse and eight affirmative acts by the government
allowed the landowner reasonably to believe that he owned the
land.8 The superior court found it inequitable to force the
landowner off the land and applied the doctrine of equitable
estoppel against the state.9
We reversed, holding that [t]he failure of municipal
and other governmental officers to affirmatively assert
governmental rights where the dedicated but as yet unused street
was being occupied by appellee and his predecessors cannot serve
as a basis for equitable estoppel.10 We held further that tacit
acquiescence by municipal officers could not serve as a basis for
equitable estoppel.11 We also held that in the absence of a
contrary statute title to streets created by dedication is held
by the municipality in trust for the public and not in a
proprietary capacity.12
Ogar relies, as she did in the superior court, on
Municipality of Anchorage v. Schneider.13 In Schneider we upheld
the superior courts application of equitable estoppel against the
municipality. We held that the landowners reasonably relied on a
settlement agreement with the municipality allowing them to
construct three residential units on their lot to comply with
then-existing zoning ordinances. After the municipality amended
the zoning ordinances, it attempted to enforce the amended
ordinances against the landowners. We held that [t]he settlement
agreement and the resulting permit gave the Schneiders clear
authorization to take the steps they did.14 We held that the
public prejudice that would result from estopping the
municipality was limited and noted that our decision was
influenced by the strong public policy in favor of settlement
agreements.15
We agree with the superior court that this case is
indistinguishable from Simpson. As the superior court said, the
failure of the government to assert its rights as to a dedicated,
but as yet unused right-of-way, could not serve as the basis for
equitable estoppel. . . . Ms. Ogars claim that the City
negligently failed to prevent or cure the encroachment fails
under equitable estoppel. It is undisputed that the city made no
affirmative assertions about building in or next to the right-of-
way after it granted the 1990 building permit; Ogars equitable
estoppel claim therefore rests on the citys failure to detect and
abate the incursions into the right-of-way and into the setback
minima. Such failures are squarely within Simpson, not
Schneider. We hold as a matter of law that the city made no
assertions that would equitably estop it from enforcing its
requirements against Ogar.
Because Ogar failed to establish the first of the four
necessary elements of equitable estoppel, it is unnecessary to
decide whether she established any of the remaining three. We
hold that there is no genuine issue of material fact and that, as
a matter of law, the city is not equitably estopped from
requiring Ogar to remove the overhang and the fuel tank. We
affirm the superior courts grant of summary judgment.
C. It Was Not an Abuse of Discretion To Award the City
$3,573.50 in Attorneys Fees.
The superior court found that the city had actually and
reasonably incurred attorneys fees of $17,867.50, and awarded the
city Alaska Civil Rule 82(b)(2) prevailing party attorneys fees
of $3,573.50; this was twenty percent of the citys incurred fees.
Ogar argues that the citys attorneys hours were excessive,
asserting that [t]he amount of time billed when compared to the
amount of work product produced appears incompatible and
unreasonable. The city relies on Abbott v. Kodiak Island Borough
Assembly16 to support its assertion that Ogar has not met her
burden of showing a clear abuse of discretion by the trial court
in awarding what it did. We agree with the citys assertion.
Ogar has never explained why the hours reflected in the bills the
city filed with the court were unnecessary or unreasonable.
We affirm the superior courts award of attorneys fees
because there was no abuse of discretion and there is no
indication the superior court failed to give appropriate scrutiny
to the timesheets counsel submitted. The attorneys bills were
admissible evidence supporting a finding concerning the full
amount of the fees incurred.17 [A]warding attorneys fees to the
prevailing party as part of the costs of an action is committed
by rule to the broad discretion of the trial court18 and $3,573.50
is neither unduly high19 nor manifestly unreasonable.20
IV. CONCLUSION
For these reasons, we AFFIRM in all respects.
_______________________________
1 Ogar claims she was denied the requested thirty-foot
vacation in retaliation for her previous opposition to a
different permit petition. The reason why the city did not grant
Ogar her entire request is irrelevant to this appeal, however,
because Ogar has abandoned her discrimination claims against the
city.
2 Kollodge v. State, 757 P.2d 1028, 1032 (Alaska 1988).
3 Hubbard v. Hubbard, 44 P.3d 153, 155 (Alaska 2002)
(citation omitted).
4 Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin,
828 P.2d 745, 766-67 (Alaska 1992) (quoting Tobeluk v. Lind, 589
P.2d 873, 878 (Alaska 1979)).
5 Municipality of Anchorage v. Schneider, 685 P.2d 94, 97
(Alaska 1984).
6 397 P.2d 288 (Alaska 1964).
7 Id. at 289.
8 Id.
9 Id.
10 Id. at 291.
11 Id. at 290 (citing City of Molalla v. Coover, 235 P.2d
142, 150 (Or. 1951)).
12 Id. at 291 (citing Town of Chouteau v. Blankenship, 152
P.2d 379 (Okl. 1944)).
13 685 P.2d 94 (Alaska 1984).
14 Id. at 98.
15 Id.
16 899 P.2d 922, 925 (Alaska 1995).
17 See Coleman v. Coleman, 968 P.2d 570, 574 (Alaska
1998).
18 Dale v. Greater Anchorage Area Borough, 439 P.2d 790,
793 (Alaska 1968) (citations omitted).
19 Davidsen v. Kirkland, 362 P.2d 1068, 1070 (Alaska
1961).
20 Palfy v. Rice, 473 P.2d 606, 613-14 (Alaska 1970); see
also McGlothlin v. Municipality of Anchorage, 991 P.2d 1273, 1277
(Alaska 1999) ([A]wards made pursuant to the schedule in Alaska
Civil Rule 82(b) are presumptively correct.).
