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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Friends of Cooper Landing v. Kenai Peninsula Borough (11/07/2003) sp-5749

Friends of Cooper Landing v. Kenai Peninsula Borough (11/07/2003) sp-5749

     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
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                              )    Supreme Court No. S-10581
               Appellant,          )
                              )    Superior Court No.
     v.                       )    3KN-00-277 CI
               Appellee.      )    [No. 5749 - November 7, 2003]

          Appeal  from the Superior Court of the  State
          of  Alaska,  Third Judicial District,  Kenai,
          Jonathan H. Link, Judge.

          Appearances:   James  N.  Reeves,  Dorsey   &
          Whitney LLP, Anchorage, for Appellant.  Holly
          B.   Montague,  Assistant  Borough  Attorney,
          Soldotna, for Appellee.

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

          PER CURIAM


           Friends of Cooper Landing (Friends) appeals a superior

court's  dismissal of an appeal from a decision rendered  by  the

Kenai  Peninsula Borough Board of Adjustment.  The superior court

dismissed the case citing lack of jurisdiction under our decision

in  Cabana v. Kenai Peninsula Borough.1  Because Friends  appeals

an  adjudicatory  decision  rather than  a  legislative  one,  we

reverse the superior court's dismissal and remand the case to  be

heard on its merits.


           At  a  meeting  in  October 1998 the  Kenai  Peninsula

Borough  Planning Commission Plat Committee approved the  Sunrise

View Revised Preliminary Plat for development of a parcel of land

between  Sunrise  and Cooper Landing on the  north  side  of  the

Sterling Highway.  Friends appealed the Plat Committee's decision

to  the  full Planning Commission, stating twenty-one  points  on

appeal.   The  Commission staff addressed each of the  twenty-one

points.   The  Commission voted to concur  with  and  accept  the

comments  and recommendations of the staff, thereby  denying  the

appeal by Friends.

           Friends appealed the Planning Commission's decision to

the  Borough  Board  of Adjustment alleging that  the  Commission

failed  to  adequately  consider each of  the  twenty-one  points

appealed and requesting that all points of appeal be remanded for

more thorough consideration.  The Borough Assembly, meeting as  a

Board  of  Adjustment, heard arguments regarding this  appeal  on

April 21, 1999.  The Board issued a decision and findings of fact

on  May  4,  1999.  The Board denied the appeal with  respect  to

Points  7,  16, 17, and 19, and remanded the remaining points  to

the Planning Commission for findings on each.

           On  remand,  the  Planning Commission  considered  the

points  and  issued  findings in support of  their  responses  to

Friends's  concerns during two meetings held  in  June  and  July

1998.  Friends again appealed to the Borough Board of Adjustment.

           The  Board  voted to deny this second appeal  after  a

February 2000 hearing.  The Board's decision was accompanied by a

set  of  factual  findings responding to the specific  points  of

appeal stated by Friends.

           Friends appealed the Board of Adjustment's decision to

the  superior court.  The Borough filed a motion to  dismiss  the

appeal.  The superior court granted this motion, citing a lack of

jurisdiction  under  our decision in Cabana  v.  Kenai  Peninsula


          Friends appeals.


           The  superior court relied upon our decision in Cabana

when it dismissed Friends's appeal.  This reliance was misplaced.

In  Cabana  we  upheld a dismissal of an appeal  from  a  borough

assembly  decision on the grounds that the superior court  lacked

jurisdiction  to  hear  the appeal.3   The  appellant  in  Cabana

appealed  the assembly's resolution that classified a  parcel  of

land  and  the assembly's ordinance that effected an exchange  of

one  parcel  for another.4  We concluded "that classification  of

municipal land, like small-scale rezoning, [should] be treated as

a  legislative  decision.  Because the decision of a  legislative

body is subject to review by appeal only where the decision is  a

quasi-judicial  one,  the  superior  court  correctly   dismissed

Cabana's appeal."5

            The   instant   case,  like  Cabana,  involves   land

classification.   Unlike  Cabana, the  instant  case  entails  an

appeal  of  a board of adjustment's adjudicatory decision  rather

than  a borough assembly's legislative decision.  That the  Board

of Adjustment and the Borough Assembly have the same members does

not  render  inconsequential the difference between the  separate

acts  and decisions of each body.  The Board of Adjustment  hears

appeals of Planning Commission decisions and renders adjudicative

responses   to   those  appeals,6  while  the  Borough   Assembly

promulgates  land  use  policy  through  legislative   acts   and

decisions.7   Both  state  law and the  borough  code  explicitly

permit an appeal to the superior court of a decision by the Board

of Adjustment.8


           Accordingly, we REVERSE the superior court's dismissal

of Friends's appeal and REMAND the case to the superior court for

a determination on the merits.

121 P.3d 833 (Alaska 2001).
3Id. at 835-36.
4Id. at 835.
5Id. at 836 (footnote omitted).
6Kenai Peninsula Borough Code (KPB) 21.20.230.
7KPB 17.10.080 & 22.40.190.
8AS  29.40.060  requires borough assemblies  to  provide  for  an
appeal to the superior court by a person aggrieved by a board  of
adjustment  decision,  and asserts that  such  an  appeal  is  an
administrative  one.  KPB   21.20.360  states:  "Pursuant  to  AS
29.40.060, appeals from the final written decisions of the  board
of  adjustment  shall be filed with the State of Alaska  Superior
Court  at  Kenai,  Alaska, and shall conform with  the  Rules  of
Appellate Procedure of the State of Alaska, Part VI."