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


PHYLLIS OGAR,                 )
                              )    Supreme Court No. S-9812
             Appellant,            )
                              )    Superior Court No.  1JU-98-371
     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.   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.


          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.


     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
          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


          [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


          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


          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

     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

     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

     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.).