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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Spinell Homes, Inc. v. Municipality of Anchorage (8/22/2003) sp-5731

Spinell Homes, Inc. v. Municipality of Anchorage (8/22/2003) sp-5731

     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
                                

SPINELL HOMES, INC.,          )
                              )    Supreme Court No. S-10546
             Appellant,            )
                               )     Superior Court No.   3AN-99-
6602 CI
     v.                       )
                              )    O P I N I O N
MUNICIPALITY OF ANCHORAGE,    )
                              )    [No. 5731 - August 22, 2003]
             Appellee.             )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John E. Reese, Judge.

          Appearances:   David J. Schmid  and  Eric  R.
          Cossman,  Law  Offices of  David  J.  Schmid,
          Anchorage,   for   Appellant.    Steven    S.
          Tervooren,    Hughes,   Thorsness,    Powell,
          Huddleston  &  Bauman,  LLC,  Anchorage,  for
          Appellee.

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

          EASTAUGH, Justice.

I.        INTRODUCTION

            A  homebuilding  company  challenges  conditions  the

Municipality  of  Anchorage imposed on the issuance  of  building

permits and certificates of occupancy for certain homes.  Because

the  Anchorage Municipal Code gave the municipality the authority

to  impose  the challenged conditions, we affirm the decision  of

the  superior  court denying the plaintiff's motion  for  summary

judgment and granting summary judgment to the municipality.

II.  FACTS AND PROCEEDINGS

           Spinell  Homes, Inc. constructs houses on property  it

acquires;  it  then  sells  the completed  homes  to  third-party

purchasers.   Spinell  must  obtain a building  permit  from  the

Municipality  of  Anchorage  before  constructing   a   home   in

Anchorage.1   After completing the home, Spinell  must  obtain  a

certificate  of  occupancy  from  the  municipality  before   the

structure can be occupied.2

           Between  1995 and 1999 Spinell purchased from  various

development  corporations all or large parts of five  residential

subdivisions  in  Anchorage: the Michael Subdivision,  the  Ponds

Subdivision,  the  Independence Park Subdivision,  the  Ridgemont

Subdivision,  and  the Muirwood Park Subdivision.   The  original

subdividers   of  those  tracts  had  entered  into   subdivision

agreements  with  the municipality as required by  the  Anchorage

Municipal  Code (AMC).3  The code required that these subdivision

agreements contain specified information, including a designation

of public improvements to be constructed by the subdivider and by

the municipality, and the specifications and scheduled completion

dates for those improvements.4

           The  original  subdivider for the Michael  Subdivision

entered  into  a  subdivision agreement with the municipality  to

construct  and  install  certain public  improvements,  including

streets,  sidewalks,  curbs,  gutters,  and  drainage.    Spinell

eventually acquired all the lots in the Michael Subdivision  from

Columbia  Investments,  Inc., another subdivider.   Columbia  and

Spinell  agreed  that  Columbia  would  construct  all   of   the

improvements   for  the  subdivision  in  accordance   with   the

Municipality's  Standard  Specifications  (MASS).   But  Columbia

failed to complete the improvements to MASS standards.

           After  Spinell  acquired the Michael  Subdivision,  it

applied  to  the municipality for building permits  to  construct

homes.   The  municipality refused to issue any building  permits

for  lots  in  the  Michael Subdivision until  the  streets  were

constructed  to  MASS  specifications.   Spinell  demanded   that

Columbia  construct the streets to MASS standards,  but  Columbia

refused.  The municipality then proposed to Spinell that it would

conditionally accept the streets even though they  did  not  meet

MASS  standards  if Spinell would warrant the  streets  for  five

years  and post a $100,000 guarantee bond.  Spinell provided  the

warranty  (in  the form of two trust deeds), and the municipality

then   issued  building  permits  to  Spinell  for  the   Michael

Subdivision.

           The  original subdividers in the Michael,  Ponds,  and

Independence Park Subdivisions had each entered into  subdivision

agreements with the municipality which obligated them to dedicate

and   construct   public   improvements,  including   landscaping

easements.  Buffer landscaping easements listed on the plat notes

burdened some lots in each subdivision.

            The  municipality  refused  to  issue  Spinell  final

certificates  of  occupancy (and, in a  few  instances,  building

permits)  for  lots  burdened with buffer  landscaping  easements

until  the  landscaping was installed.  For  lots  on  which  the

municipality withheld final certificates of occupancy, it  issued

temporary  certificates  and conditioned  final  certificates  on

installation  of  the landscaping.  These temporary  certificates

allowed the homes to be occupied and enabled Spinell to sell  the

homes,   but  they  affected  the  buyer's  ability   to   obtain

conventional financing for the homes or re-sell them before final

certificates were issued.

           The municipality also required Spinell to install  "on

lot"  landscaping  on some individual lots  in  the  Michael  and

Ridgemont  Subdivisions.  The plat notes for those lots  required

the  installation of landscaping - in many cases,  two  or  three

trees  per lot.  The municipality issued conditional certificates

of  occupancy  for the homes built on these lots but  refused  to

issue  final  certificates  until  the  on-lot  landscaping   was

installed.

           As  a  condition for issuing building permits for  two

lots  in  the  Ridgemont  Subdivision, the municipality  required

Spinell to obtain written approval for the design of its proposed

homes  from  the  Independence Park Community Association  Design

Review  Committee, which both parties describe as  a  homeowners'

association.    Spinell   obtained  this   permission   and   the

municipality issued the building permits.

          As a condition of issuing a building permit for one lot

in  the  Muirwood  Park  Subdivision, the  municipality  required

Spinell   to  obtain  written  verification  from  the   original

subdivider  that Spinell had disturbed no living trees.   Spinell

presumably  met this requirement because the municipality  issued

the building permit.

            In   1999  Spinell  filed  a  complaint  against  the

municipality for inverse condemnation, and also alleged under  42

U.S.C.   1983 that the municipality had violated Spinell's rights

to  substantive due process and equal protection and had effected

a taking.  Spinell sought (1) a declaratory judgment ordering the

municipality   to  issue  the  relevant  final  certificates   of

occupancy,   reconvey  the  performance  bond  for  the   Michael

Subdivision, and install buffer landscaping and all other  public

improvements  on  the Michael Subdivision at  the  municipality's

expense;  (2)  a permanent injunction preventing the municipality

from   imposing   on  the  issuance  of  building   permits   and

certificates  of occupancy conditions that are not authorized  by

the  municipality's  ordinances; and (3) a  permanent  injunction

preventing the municipality from requiring Spinell to satisfy the

obligations  of  a subdivider.  Spinell also sought  compensation

for   the  alleged  taking,  and  compensatory  damages   in   an

unspecified amount greater than $100,000.

           After the superior court granted in part and denied in

part the municipality's motion to dismiss, both parties moved for

summary  judgment.  The superior court determined that  Spinell's

constitutional claims "are predicated on whether the Municipality

wrongfully  denied  Spinell's request for  building  permits  and

certificates  of  occupancy."   The  court  then  held  that  the

municipality  had  authority to require Spinell  to  comply  with

municipal requirements as a condition for issuing the permits and

certificates.   It  granted the municipality's  summary  judgment

motion and denied Spinell's summary judgment motion.

          Spinell appeals.

III. DISCUSSION

          A.   Standard of Review

           The  parties dispute the standard of review.   Spinell

argues that we should apply our customary de novo standard  to  a

grant  of  summary  judgment.  The municipality  argues  that  we

should  apply  the standard of review that we use  for  examining

administrative decisions, on the theory that this  case  involves

the  review of "administrative decisions involving complex issues

that  require  agency expertise."  It relies on our statement  in

Ellis  v.  State, Department of Natural Resources that  in  those

situations, we will defer to the agency's determination "so  long

as it is reasonable, supported by the evidence in the record as a

whole,  and  there is no abuse of discretion."5 The  municipality

argues that "[t]he interpretation of the platting and zoning code

provisions by Anchorage, and more particularly by those officials

charged  with  their  enforcement,  is  entitled  to  substantial

deference."

          Because, as we explain below, the municipality prevails

on  appeal  even under the less deferential de novo  standard  of

review,  we  do  not need to decide whether the more  deferential

standard  advocated by the municipality applies  here.   We  will

apply  a de novo standard of review to the superior court's grant

of  summary  judgment to the municipality and denial  of  summary

judgment  to Spinell, and will uphold a grant of summary judgment

if  either  party  meets  the  customary  standards  for  summary

judgment.6  There must be no genuine issues of material fact, and

the moving party must be entitled to judgment as a matter of law.7

          B.    The  Municipality  Had Authority  To  Impose  the
          Conditions and Requirements.
          
                      1.     AMC    21.15.120(E)   empowers   the
               municipality   to  enforce  plat   notes   against
               Spinell.
               
           Spinell  argues that the municipality has no authority

to  require  Spinell to construct and warrant streets or  install

landscaping  as a condition for a building permit or  certificate

of  occupancy.   It asserts that the conditions the  municipality

imposed  on the issuance of building permits and certificates  of

occupancy  were only binding on the subdivider of  the  property.

Spinell argues that because it was not the subdivider of  any  of

the  properties  at  issue, the municipality  could  not  require

Spinell  to  construct and warrant streets or install landscaping

in   order  to  receive  a  building  permit  or  certificate  of

occupancy.   We conclude that whether Spinell was the  subdivider

is  irrelevant,  because AMC 21.15.120(E) gives the  municipality

authority  to  enforce  the plat notes  and  plot  notes  against

Spinell.  The municipality did not have to issue building permits

or  certificates of occupancy as long as the requirements  listed

on the plat notes were unfulfilled.

          Subsection 21.15.120(E) of the Anchorage Municipal Code

authorizes  the  platting authority to place  conditions  on  the

final  approval  of a subdivision plat.8  The platting  authority

indicates  those  conditions  through  notations  on  the   plat.

Subsection  .120(E) provides that these notes become  restrictive

covenants  in favor of the municipality that run with  the  land.

Spinell  attempts to distinguish the conditions and  requirements

the   municipality   imposed  here  from   the   conditions   and

requirements  running with the land under the  code.   It  argues

that  the disputed conditions and requirements do not fall within

subsection .120(E) and do not run with the land, but instead  are

"personal obligation[s] imposed on the subdivider by the platting

board."    Spinell  notes  that  the  subdivider  must   post   a

performance   bond   to   guarantee  the  installation   of   the

landscaping,  and  argues  that  this  condition  is  a  personal

obligation  rather than a restrictive covenant running  with  the

land.   Spinell then argues that it is not a subdivider and  does

not stand in the place of a subdivider but is merely a subsequent

lot owner.

           The  municipality argues that under AMC  21.15.120(E),

"[o]nce  the  landscaping requirements  were  set  forth  on  the

recorded  plat, they became a restrictive covenant, and the  land

could not be occupied or maintained in a fashion which failed  to

meet  the terms of the plat note."  We agree.  Subsection .120(E)

clearly  states  that  plat notes "may be  enforced  against  the

subdivider  or  any  subsequent owner by the municipality."   The

municipality  was  not  obliged to  issue  building  permits  and

certificates  of  occupancy to Spinell  or  anyone  else  if  the

conditions and requirements in the plat notes had not been met.

                     2.    The  municipality was not required  to
               issue  permits and certificates under the  Uniform
               Administrative  Code, Uniform  Building  Code,  or
               Anchorage Municipal Code.
               
           Spinell argues that the Anchorage Municipal Code,  the

1997  Uniform  Administrative Code (UAC), and  the  1997  Uniform

Building  Code  (UBC)9  required  the  municipality  to  issue  a

building permit or certificate of occupancy whenever an applicant

"complies  with  the  administrative and  technical  requirements

provided  in  the  building  codes, and  the  proposed  structure

constitutes a permitted use of the property under the  applicable

zoning  ordinances."  The municipality responds that these  codes

do  not  obligate  it  to issue permits or  certificates  if  the

building  official  finds any violations of those  codes  or  any

other laws.

           Uniform Administrative Code  303.1, which governs  the

issuance of building permits, states in part:

          The  application, plans, . . . and other data
          filed  by  an applicant for permit  shall  be
          reviewed  by  the  building  official.   Such
          plans may be reviewed by other departments of
          this  jurisdiction to verify compliance  with
          any applicable laws under their jurisdiction.
          If  the building official finds that the work
          described in an application for a permit  and
          the  plans,  specifications  and  other  data
          filed  therewith conform to the  requirements
          of  this  code  and the technical  codes  and
          other pertinent laws and ordinances, and that
          the  fees specified in Section 304 have  been
          paid,  the  building official shall  issue  a
          permit therefor to the applicant.
          
           Uniform  Administrative Code  309.3,  which  discusses

certificates of occupancy, states in part:

          After  the  building  official  inspects  the
          building or structure and finds no violations
          of  the provisions of this code or other laws
          which  are  enforced by the code  enforcement
          agency,  the building official shall issue  a
          certificate of occupancy. . . .
          
           Spinell  argues  that these provisions  obligated  the

building  official  to issue building permits and  final  (rather

than temporary) certificates of occupancy.10       Similarly, the

handbook's  commentary to the certificate of occupancy provisions

explains  that  the  building official must issue  a  certificate

"when  the  building official is satisfied that the  building  or

portion  thereof complies with the code for the intended use  and

occupancy."    Id.  at  4.   It  is  undisputed  that   Spinell's

applications  for building permits and certificates of  occupancy

complied with administrative and structural requirements for  the

homes  it  constructed  or  planned to  construct.   It  is  also

undisputed   that  building  the  single-family   homes   Spinell

constructed or planned to construct was a permissible use of  the

land  under  the  applicable zoning ordinances.  Spinell  asserts

that  the  only  requirements that it failed  to  meet  were  the

additional   public  improvement  conditions   the   municipality

imposed.   Spinell  argues that the AMC did not  authorize  these

requirements  for  completing  public  improvements,   and   that

therefore  the building official should have issued  the  permits

and certificates.

           But  under UAC  309.3, the municipality does not  have

to  issue  a certificate of occupancy if there are any violations

of any provisions of the AMC, the UAC, UBC, or the plat notes.  A

final  certificate  of occupancy is essentially  a  guarantee  to

third  parties that the building official inspected the completed

project  and found no violations of any ordinance, plat note,  or

building   or  zoning  code.11   The  municipality  characterizes

Spinell's  argument  as "ask[ing] this court  to  .  .  .  compel

Anchorage   to  perpetrate  widespread  fraud  upon   homebuyers,

lenders, title companies, and others" by forcing the municipality

to  issue  final  certificates  of  occupancy  despite  Spinell's

violations   of   the  plat  notes.   Spinell  would   have   the

municipality  ignore  violations of  the  plat  notes  and  issue

building permits and certificates of occupancy as long as Spinell

did  not commit those violations.  We do not think the UAC,  UBC,

and AMC require this result.

            It   is  irrelevant  to  our  analysis  whether   the

landscaping had to be installed by Spinell or its predecessors in

interest in each of the subdivisions.  Our analysis turns on  the

circumstance  that the plat notes contain a restrictive  covenant

that runs with the land, is tied to the certificate of occupancy,

and states that landscaping will be installed in the subdivision.

Spinell  had  both  constructive  and  actual  notice  of   those

provisions.   The sales agreement for Spinell's purchase  of  the

Muirwood  Park Subdivision, for example, contained a  handwritten

note   initialed  on  behalf  of  Spinell  stating  that  "[t]his

agreement is contingent on the buyer Spinell Homes reviewing  and

approving  the  requirements of platting and plat  notes."   Also

illustrative is the plot plan Spinell submitted for a lot in  the

Ponds  Subdivision which indicated where buffer landscaping would

be  installed and which stated that "[a]ll work shall be done  as

shown  on  this  plot plan."  When the platting authority  placed

notes   on   the   relevant  plats  indicating  the   landscaping

requirements, Spinell was placed on constructive notice of  those

requirements.

          Plat notes are covenants that run with the land and are

enforceable  by the municipality against subsequent owners.   The

certificate  of  occupancy is an administrative enforcement  tool

that enables the municipality to ensure compliance with all laws,

conditions,   and   obligations.   Landscaping  requirements   in

Anchorage  have  historically  been  tied  to  the  issuance   of

certificates of occupancy.12  Because the conditions had not been

fulfilled,  the  municipality  was  not  obligated  to  issue   a

certificate of occupancy.

















                    3.   The performance bonds do not require the
               municipality   to  issue  building   permits   and
               certificates of occupancy.
               
                         Spinell argues that per AMC 21.87.055,13

               once  the municipality accepts a performance  bond

               from a subdivider to guarantee the installation of

               public   improvements,  the  municipality's   only

               remedy when improvements are not completed  is  to

               proceed against the performance bond, not to  deny

               a  certificate  of  occupancy or building  permit.

               Spinell  points  to  commentary  supporting   this

               position:

          Where a subdivision plat has been approved by
          the  planning  board and  a  bond  to  assure
          improvement of the streets and other required
          installations has been furnished, a  building
          permit cannot be withheld on the ground  that
          the street has not been "suitably improved as
          required  by the planning board," as required
          by  a collateral statute.  It is contemplated
          that  permits  will issue once  the  bond  is
          furnished, and the map approved and filed.[14]
          
                     Relying on this language,  Spinell

          argues  that the municipality had to complete

          the  subdivision improvements -  particularly

          the  streets in the Michael Subdivision -  at

          its  own  expense.  Spinell claims  that  the

          municipality  had  no authority  to  withhold

          building permits or certificates of occupancy

          from  Spinell merely because the improvements

          had not been constructed.  Spinell also cites

          to  a  Maryland  case in  which  a  developer

          acquired  two subdivision lots from  a  prior

          developer  who had posted a performance  bond

          to   guarantee  the  improvement  of  a  road

          adjoining  the subdivision.15  The  defendant

          county  issued building permits  to  the  new

          developer, which began construction.   Later,

          the    county    threatened    to    withhold

          certificates  of occupancy until  the  public

          improvements  were completed.   The  Maryland

          Court  of  Special  Appeals  ruled  that  the

          county  could  not withhold  certificates  of

          occupancy from the new developer once the new

          developer    met   the   county's    building

          regulations,  but could only proceed  against

          the  initial developer's performance  bond.16

          The court explained that "[i]t would make  no

          sense  to  require posting of a bond  if  the

          performance itself were nonetheless  required

          as  a necessary predicate to issuance of  the

          necessary permits."17

                    But here, the subdivision agreement

          for   the  Michael  Subdivision  between  the

          municipality   and  the  initial   subdivider

          expired in 1990, and Spinell did not purchase

          the   subdivision  until  1996.   It  appears

          undisputed  that the municipality  could  not

          proceed  against  the  bond  posted  by   the

          initial  developer.  The municipality  argues

          in  its  brief that it could not look to  the

          bond  from  the  original subdivider  because

          that   bond  had  expired  and  the  original

          subdivider was now defunct.  Spinell's  reply

          brief  does not rebut that contention.  There

          is no basis for us to think that the original

          subdivider's bond is still in effect.

                     Furthermore,  as the  municipality

          observes,   the  language  in  AMC  21.87.055

          regarding   default  by  the  subdivider   is

          permissive   rather  than  mandatory.    That

          provision  states  that in  the  event  of  a

          default  by  the subdivider the  municipality

          "may" demand payment.18

                      The  AMC  does  not  require  the

          municipality to use public funds to  complete

          subdivision improvements for the  benefit  of

          private   lot   owners  when   the   original

          subdivider abandons the project and goes  out

          of  business, as the original subdivider  did

          here.   The  AMC only requires  that  if  the

          municipality  obtains  any  funds  from   the

          performance  bonds,  it  apply  those   funds

          towards the construction and installation  of

          the  improvements.  The municipality  had  no

          obligation  to accept streets in the  Michael

          Subdivision  that did not meet its  standards

          or to repair them at public expense.

                     4.    AMC  21.45.125(D)  does  not
               prevent     the    municipality     from
               conditioning  certificates of  occupancy
               on the installation of landscaping.
               
           Spinell next argues that AMC 21.45.125(D) prevents the

municipality  from  withholding final certificates  of  occupancy

pending    the    installation   of   landscaping.     Subsection

21.45.125(D),   which   appears  in  the   AMC   chapter   titled

"Supplementary   District  Regulations,"   states   that   "[a]ll

landscaping shall be installed within 18 months after receiving a

temporary  or  final  certificate of occupancy,  whichever  comes

first."

           But  AMC 21.85.190, which appears in the code  chapter

titled "Subdivision Standards: Improvements," states in part that

"[l]andscaping shall be provided on an individual lot  basis  not

later  than the issuance of a certificate of occupancy."  Spinell

advances a strained interpretation of AMC 21.85.190 in an  effort

to  harmonize  the  two  code provisions.   Spinell  claims  that

section  .190  "makes  clear  that it  is  the  issuance  of  the

certificate of occupancy that triggers the subdivider's  deadline

to  install  the  landscaping, and not  the  other  way  around."

Spinell argues that the date a certificate of occupancy is issued

merely "establishes . . . the date of default of the subdivider's

obligation  to  install the landscaping."  We disagree.   Section

.190's  location  in the AMC chapter on subdivision  improvements

indicates  that  it controls the timing for the  installation  of

landscaping  improvements in subdivisions.  The section  requires

the installation of landscaping before the municipality issues  a

certificate of occupancy.

                     5.   The on-lot landscaping requirements for
               the Michael Subdivision were valid.
               
            The   twelve  Michael  Subdivision  lots   that   the

municipality subjected to the on-lot landscaping requirement were

zoned  R-2M.   On-lot (also referred to as "visual  enhancement")

landscaping is not required by AMC 21.40.045(M) for lots zoned R-

2M  unless  the  lot  contains more than three dwelling  units.19

Spinell  argues that because the lots in the Michael  Subdivision

only   had  single-family  homes,  on-lot  landscaping  was   not

required.   But  although the zoning laws did not require  on-lot

landscaping  for  the lots in the Michael Subdivision,  the  plat

notes  for  those  lots did.  Zoning laws  set  out  the  minimum

standards  that  a  party must meet.  More  specific  plat  notes

control over the more general zoning requirements.20

                     6.   Spinell has not shown that the superior
               court erred concerning the requirement Spinell get
               approval from the homeowners' association.
               
           For  two  Ridgemont Subdivision lots, the municipality

required Spinell to obtain written approval for the design of its

proposed homes from a homeowners' association as a condition  for

issuing  building  permits.  This requirement  was  part  of  the

settlement   of   litigation  between   the   municipality,   the

homeowners'   association,  and  the  prior  developer   of   the

subdivision.  Spinell obtained the required permission  from  the

homeowners' association and the municipality issued the  building

permits.

           Spinell  cites  several authorities21 to  support  its

argument  that "[i]t is well established that, where the proposed

building complies with the building code and zoning ordinances, a

building  permit cannot be denied on the ground that the building

would  violate  the terms of a restrictive covenant  against  the

property."  There is a dispute about whether the agreement  bound

Spinell.   But  because Spinell in fact obtained permission  from

the  association  and the municipality issued  the  permits,  and

because  Spinell has not demonstrated how it was harmed  by  this

requirement,  there  is no reason for us to  decide  whether  the

municipality overstepped.

           At  most, the requirement slightly delayed the permits

(by  ten  and  twenty-nine days).  These sorts of delays  do  not

amount  to  actionable takings.22  There is  no  indication  that

Spinell  was  deprived  of all economically  viable  use  of  its

property or that it had to alter its design.  The fact that  this

condition was imposed in the context of litigation suggests  that

this  condition  does  not  reflect  a  blanket  policy  of   the

municipality.  Instead, this appears to have been a case-specific

requirement, and we have not been provided with the specifics.

           Spinell  consequently  has not demonstrated  that  the

superior court erred.23

          C.   Spinell's Constitutional Claims Have No Merit.

                    Spinell argues that the municipality violated

          Spinell's right to substantive due process because  the

          municipality  breached  its  mandatory  duty  to  issue

          unconditioned permits and certificates,  and  that  the

          municipality's  actions  were  consequently  arbitrary,

          irrational, and not reasonably related to a  legitimate

          governmental purpose.  It appears Spinell  founds  this

          argument  on the proposition that the municipality  had

          no  authority to condition the permits and certificates

          as  it  did.   Thus,  Spinell argues  that  it  "has  a

          legitimate   claim  of  entitlement  and  a   protected

          property interest in the building permit or certificate

          of  occupancy if the municipality has a mandatory  duty

          under  its  building ordinances to issue the permit  if

          the  applicant complies with the criteria specified for

          its  issuance."  Spinell recognizes that to maintain  a

          substantive due process claim, it "must establish  that

          it  had a protected property interest in the permit  or

          benefit claimed to have been unconstitutionally  denied

          or  interfered with."  But because we have decided that

          the  municipality did not have a mandatory duty in this

          case   to  issue  Spinell  unconditioned  permits   and

          certificates, Spinell cannot establish that  it  had  a

          protected  property  interest in unconditioned  permits

          and  certificates.  It consequently cannot establish  a

          substantive due process violation.

                      Spinell   nonetheless   claims   that   the

          municipality's actions effected a taking  because  they

          did not substantially advance a legitimate governmental

          interest.    The  Alaska  Constitution  provides   that

          "[p]rivate  property shall not be taken or damaged  for

          public  use  without just compensation."24  The  Alaska

          Constitution  provides greater protection for  property

          owners  than  does the Fifth Amendment  of  the  United

          States Constitution.25

                     Spinell first appears to argue that imposing

          the  conditions effected a per se taking.   But  "where

          there has been no physical invasion of property, a  per

          se  taking will not be found except upon a showing that

          all  economic value of a particular piece  of  property

          has been destroyed."26  There is no basis for finding a

          per   se   taking  here.   The  municipality  did   not

          physically  invade  Spinell's  land  and  it  did   not

          completely deprive Spinell of all economic value of its

          land.   Indeed, Spinell has constructed houses on  many

          of  the lots and sold them to third parties.  Moreover,

          Spinell makes no effort to show that the value  of  its

          land was at all altered by the municipality's actions.

                     Spinell also asserts that the municipality's

          actions  effected  a  taking  on  a  state-law  inverse

          condemnation theory.  Generally if there  has  been  no

          per  se  taking,  we  will engage  in  a  case-specific

          analysis to determine whether there has been a taking.27

          We   consider  four  factors  (known  as  the  Sandberg

          factors):   "(1)  the  character  of  the  governmental

          action;  (2)  its economic impact; (3) its interference

          with reasonable investment-backed expectations; and (4)

          the   legitimacy  of  the  interest  advanced  by   the

          regulation  or  land-use decision."28    But  Spinell's

          appellate   takings  argument  does  not  discuss   the

          Sandberg  factors.  We recently declined to  conduct  a

          Sandberg analysis when the landowners alleging a taking

          substantively  discussed only one  of  the  factors  in

          their  briefs.29  Spinell has not discussed any of  the

          factors  here.   Furthermore,  as  we  noted  above  in

          rejecting  Spinell's per se takings claim, Spinell  has

          made  no effort to show that the municipality's actions

          adversely affected the value of Spinell's property.

                     Spinell also asserts that the municipality's

          actions effected a taking based on the test established

          by  the  United  States  Supreme  Court  in  Nollan  v.

          California  Coastal Commission30 and Dolan v.  City  of

          Tigard.31   A  Nollan/Dolan taking may arise  when  the

          government makes "an adjudicative decision to condition

          [the landowner's] application for a building permit  on

          an  individual  parcel," as opposed  to  a  legislative

          determination  of general application.32  Additionally,

          that individualized condition must require the property

          owner  to dedicate a portion of his or her property  to

          the public.33

                     But  Spinell has not demonstrated  that  the

          municipality specially required Spinell to dedicate any

          property  for  public  easements or  to  construct  new

          streets.    The   municipality  simply  required   that

          predetermined  municipal  requirements   be   satisfied

          before  it would issue permits or certificates.   These

          requirements were city-wide conditions that,  moreover,

          arose  largely out of obligations accepted by Spinell's

          predecessors.   There  is  no  indication  Spinell  was

          required  to  do  anything other  developers  were  not

          required  to  do  to satisfy the plat notes  for  their

          subdivisions.   To  have  a Nollan/Dolan  taking  under

          these  circumstances, Spinell would have to demonstrate

          that  the  original  subdivider could  have  brought  a

          Nollan/Dolan  takings  claim.  Spinell  makes  no  such

          showing.   Indeed, such a claim is inherently  at  odds

          with   Spinell's argument that the original  subdivider

          should   have  been  responsible  for  satisfying   the

          conditions  that the municipality imposed  on  Spinell.

          If  the  original subdivider could not  have  raised  a

          Nollan/Dolan  claim  under the  circumstances  of  this

          case, we see no basis for Spinell to do so.

                     Because  Spinell  has  not  shown  that  the

          requirements   for   some   minimal   landscaping   and

          compliance  with the MASS standards were conditions  or

          exactions   that   were   not   proportional   to   the

          subdivisions' impact, Spinell's Nollan/Dolan theory  of

          taking is without merit.

                     As  previously  noted, the municipality  did

          impose two conditions that did not obviously arise  out

          of  routine  enforcement of the plat specifications  or

          subdivision   agreement.    But   even   assuming   the

          requirements  of homeowners' association  approval  and

          "living tree" verification could conceptually support a

          Nollan/Dolan  takings claim, Spinell's briefs  fail  to

          show  that  it  suffered  an  impact  of  the  kind  or

          magnitude   this   theory  requires.    Certainly   the

          municipality's requirements seem to have been temporary

          and insignificant restraints, at most.  Spinell has not

          demonstrated  that  these  requirements  forced  it  to

          dedicate  its money or property to a public use.   They

          did   not  seem  to  be  an  "exaction"  of  the   sort

          contemplated for such claims, and Spinell's briefs fail

          to show that it has any actionable Nollan/Dolan claims.

                      Spinell's  opening  brief  also   cursorily

          asserts   that  the  municipality's  actions   deprived

          Spinell  of  equal protection because the  municipality

          has  no  rational  basis for imposing  the  street  and

          landscaping conditions on developers but not  on  other

          permit applicants.  As we explained above, we will  not

          consider  an  appellant's arguments given only  cursory

          treatment in its briefs.34

IV.  CONCLUSION

           We  AFFIRM the decision of the superior court  denying

Spinell's  motion  for  summary  judgment  and  granting  summary

judgment to the municipality.

_______________________________
1    Uniform Administrative Code (UAC)  301.1 (1997) provides:

          Permits  required.  Except  as  specified  in
          Section  301.2,  no  building,  structure  or
          building service equipment regulated by  this
          code   and  the  technical  codes  shall   be
          erected,   constructed,  enlarged,   altered,
          repaired, moved, improved, removed, converted
          or  demolished unless a separate, appropriate
          permit   for  each  building,  structure   or
          building  service equipment  has  first  been
          obtained from the building official.
          
2    UAC  309.1 (1997) provides:

          Use  or  Occupancy.  Buildings or  structures
          shall  not  be used or occupied nor  shall  a
          change     in    the    existing    occupancy
          classification of a building or structure  or
          portion  thereof be made until  the  building
          official   has   issued  a   certificate   of
          occupancy therefor as provided herein.
          
3    Anchorage Municipal Code (AMC) 21.87.010(A) (1996) provides:

          Before  a final plat for a subdivision  where
          improvements are required under chapter 21.85
          is  approved  or filed, the subdivider  shall
          enter  into a subdivision agreement with  the
          municipality in accordance with this chapter.
          
4    AMC 21.87.010(C) (1996).
5     944  P.2d 491, 493 (Alaska 1997) (quoting Kodiak W.  Alaska
Airlines,  Inc. v. Bob Harris Flying Serv., Inc., 592 P.2d  1200,
1203 n.7 (Alaska 1979)).
6     See Joseph M. Jackovich Revocable Trust v. State, Dep't  of
Transp., 54 P.3d 294, 297 (Alaska 2002).
7    Id.
8    AMC 21.15.120(E) (1996) provides:

          The   platting  authority  may   place   such
          conditions   upon  granting  of  final   plat
          approval  as  are necessary to  preserve  the
          public   welfare  in  accordance   with   the
          subdivision   regulations.    When   such   a
          condition  of approval entails a  restriction
          upon  the  use of all or part of the property
          being  subdivided,  a  note  specifying  such
          restrictions shall be placed on the  face  of
          the  plat.   Such  note  shall  constitute  a
          restrictive   covenant  in   favor   of   the
          municipality  and the public  and  shall  run
          with   the  land,  enforceable  against   all
          subsequent   owners.   Any  such  restrictive
          covenant   may   be  enforced   against   the
          subdivider  or any subsequent  owner  by  the
          municipality or by any specifically  affected
          member of the public.
          
9     AMC  23.05.010 (1996) adopts by reference the 1997 editions
of the UAC and UBC.
10    Spinell cites the Handbook to the Uniform Building Code, the
official commentary to the UBC, to support its reading of the UAC
and UBC.  The commentary explains that the building official must
issue  a  building  permit  if "the information  filed  with  the
application  shows compliance with the [UBC] and other  laws  and
ordinances  .  .  .  . Thus, the building official  would  be  in
violation  of  the code to withhold the issuance  of  a  building
permit  for  a  swimming  pool because a cabana  was  constructed
without a permit."  Int'l Conference of Bldg. Officials, Handbook
to the Uniform Building Code 3 (1995).

11     3  Kenneth  H. Young, Anderson's American  Law  of  Zoning
19.03, at 362 (4th ed. 1996).
12     An April 9, 1985 memorandum to the Anchorage Assembly from
the  mayor, municipal manager, and director of community planning
discussed  means  of  enforcing buffer  landscaping  installation
requirements.   The  memorandum recognized the  general  practice
that  "the  installation of new landscaping  may  be  tied  to  a
certificate of occupancy." Anchorage Assembly Memorandum AIM  55-
85.
13    AMC 21.87.055 (1996) states in part:

          If  the subdivider defaults on any obligation
          to  construct required public improvements or
          the  obligation  to warrant and  repair  such
          improvements,  the  municipality  may  demand
          immediate  payment  on  the  performance   or
          warranty guarantee. . . .  All funds received
          by  the  municipality shall be used  for  any
          construction,    repair   or   reconstruction
          necessary to ensure that: (A) [a]ll  required
          public    improvements    are    built     to
          specifications  necessary  to  receive  final
          acceptance. . . .
          
14     5  Arden  H. and Daren A. Rathkopf, The Law of Zoning  and
Planning   91.16  (2001).   A footnote  to  the  above  quotation
continues:

          Likewise a certificate of occupancy  may  not
          be  denied  for a model home in an incomplete
          subdivision where it was constructed pursuant
          to  a valid building permit and the developer
          posted  bonds  for  the required  subdivision
          improvements,  even  though  the  subdivision
          regulations   provide   that   issuance    of
          certificates  of  occupancy  for  such  model
          homes  must  await completion of on-site  and
          off-site  improvements.  This  provision  was
          construed  as  to  provide  only  an  interim
          safeguard     until     performance     bonds
          guaranteeing   installation  of  improvements
          were posted.
          
Id. at n.8.

15    Key Fed. Sav. & Loan Ass'n v. Anne Arundel County, 460 A.2d
86 (Md. Spec. App. 1983).
16    Id. at 91.
17    Id. at 90.
18    AMC 21.87.055 (emphasis added).
19    AMC 21.40.045(M) (1996) provides in part: "On lots in the R-
2M  district containing more than three dwelling units, all areas
not  devoted  to buildings, structures, drives, . .  .  or  other
authorized installations shall be planted with visual enhancement
landscaping."
20     Alaska R.R. Corp. v. Native Vill. of Eklutna, 43 P.3d 588,
593  (Alaska  2002) (explaining that more specific provisions  of
statute  control  over more general provisions);  O'Callaghan  v.
Rue, 996 P.2d 88, 99 n.58 (Alaska 2000) (same).
21     8  Eugene  McQuillin,  The Law of  Municipal  Corporations
25.151,  at 558 (3d ed. 2000) ("An ordinance cannot prohibit  the
issuance  of  a building permit solely because the  proposed  use
will  be contrary to restrictions contained in recorded covenants
applicable to the property for which the permit is sought,  since
the  effect  of such a prohibition would be an illegal delegation
to  private covenantors of the municipality's zoning power.");  3
Young,  supra  note 13,  20.77 at 673 ("A building permit  for  a
use  permitted by the zoning regulations may not be denied on the
ground  that the use will violate a restrictive covenant.");  see
also  Friends of Shawangunks, Inc. v. Knowlton, 476  N.E.2d  988,
990 (N.Y. 1985) ("[T]he issuance of a permit for a use allowed by
a  zoning  ordinance may not be denied because the  proposed  use
would be in violation of a restrictive covenant.").
22    Cf. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning
Agency,  535 U.S. 302, 321 (2002); Joseph M. Jackovich  Revocable
Trust v. State, Dep't of Transp., 54 P.3d 294, 300 (Alaska 2002).
23     The fact portion of Spinell's brief also asserts that  for
one  Muirwood Park Subdivision lot, the municipality  refused  to
issue  Spinell  a building permit until Spinell obtained  written
verification  from  the  original  subdivider  that  Spinell  had
disturbed no living trees on the lot, but the argument portion of
its  brief does not address this issue, and therefore we  do  not
reach  it.  Stosh's I/M v. Fairbanks North Star Borough, 12  P.3d
1180,  1183 (Alaska 2000) ("where a point is given only a cursory
statement in the argument portion of a brief, the point will  not
be  considered on appeal." (quoting Adamson v. Univ.  of  Alaska,
819   P.2d  886,  889  n.3  (Alaska  1991)));  State  v.  O'Neill
Investigations,  Inc., 609 P.2d 520, 528 (Alaska 1980)  ("Failure
to argue a point constitutes an abandonment of it.").
24    Alaska Const. art. I,  18.
25     R&Y,  Inc. v. Municipality of Anchorage, 34 P.3d 289,  293
(Alaska 2001).
26    Id. at 296.
27    Id. at 293.
28    Id.
29     Joseph  M.  Jackovich Revocable Trust v. State,  Dep't  of
Transp., 54 P.3d 294, 303-04 (Alaska 2002).
30    483 U.S. 825 (1987).
31    512 U.S. 374 (1994).
32    Dolan, 512 U.S. at 385.
33    Id.
34    See supra note 23.