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Dykstra v. Municipality of Anchorage (01/02/2004) sp-5766
Dykstra v. Municipality of Anchorage (01/02/2004) sp-5766
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
DAVID DYKSTRA, )
) Supreme Court No. S-10512
Appellant, )
) Superior Court No.
v. ) 3AN-00-3744 CI
)
MUNICIPALITY OF ANCHORAGE, ) O P I N I O N
LAND USE DIVISION, )
) [No. 5766 - January 2, 2004]
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District at
Anchorage, Eric T. Sanders, Judge.
Appearances: David Dykstra, pro se,
Anchorage. Linda J. Johnson and Joyce W.
Johnson, Deputy Municipal Attorneys, and
William A. Greene, Municipal Attorney,
Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
The Municipality of Anchorage's zoning board of
examiners and appeals affirmed an enforcement order directing
David Dykstra to stop using the area surrounding his four-plex as
a storage yard for cars. Dykstra appeals, contending that
collecting and storing cars is a permitted accessory use under
zoning ordinances governing R-3 property; alternatively, he
argues, the ordinances describing accessory uses are
unconstitutionally vague. We reject Dykstra's claim of vagueness
and find ample evidence to support the board's decision that his
car collection exceeded the scope of a permissible accessory R-3
use. But we nonetheless hold that, before enforcing its order,
the board must give Dykstra reasonable notice of the steps needed
to correct his violation. Because the board did not adopt
specific findings, as required by Anchorage's zoning code, it
failed to give Dykstra adequate guidance. We thus remand for
entry of findings.
II. FACTS AND PROCEEDINGS
David Dykstra owns a four-plex in an Anchorage
neighborhood zoned as an R-3 multiple-family residential
district. Dykstra collects cars as a hobby and regularly keeps
twenty or more cars on his property and in the adjoining right of
way. This car collection has been the source of tension between
Dykstra and his neighbors for several years. In response to
neighborhood complaints, the Municipality of Anchorage's Building
Safety Division concluded that Dykstra was using his property as
a storage yard, in violation of the ordinances governing
permissible R-3 property uses. The division sent Dykstra an
enforcement order informing him of its conclusion, directing him
to discontinue using the property as a storage yard, and
requiring him to submit for municipal review and approval a
written plan to abate the violation.
Dykstra petitioned the zoning board of examiners and
appeals, asking it to review the enforcement order. After
conducting a hearing, the board denied Dykstra's petition.
Although the board notified Dykstra that it would approve written
findings at a later meeting, the board evidently never adopted
findings. Dykstra appealed to the superior court, which affirmed
the board's decision.
Dykstra appeals.
III. DISCUSSION
The controversy in this case arises from municipal
zoning ordinances describing permissible uses for Dykstra's
property, which is located in a R-3 multiple-family residential
district. Anchorage Municipal Code (AMC) 21.40.050 governs R-3
districts. This provision defines R-3 use districts as primarily
residential in character, stating that they are "intended to
include urban and suburban single-family, two-family and multiple-
family residential uses with medium population densities."1
Subsection .050(B) describes the principal uses allowed in these
districts; subsection .050(C) lists permissible accessory uses;
and subsection .050(D) sets out conditional uses.
The principal uses for R-3 districts include various
kinds of family dwellings and structures directly related to
family living, such as schools, parks, libraries, day care
facilities, and churches.2 The R-3 list of permissible
"accessory" uses encompasses "[p]rivate storage in yards of
noncommercial equipment, including noncommercial trucks, boats,
aircraft, campers or travel trailers, in a safe and orderly
manner and separated by at least five feet from any property
line."3 The zoning code defines "accessory" uses to mean uses
that are "customarily subordinate or incidental to and located on
the same lot with a principal use, building or structure."4
Under the zoning code, any use listed as a permitted,
accessory, or conditional use in one district but not in another
becomes a prohibited use wherever it is not listed.5 The zoning
code lists open storage yards as a permitted principal use in L-1
- light industrial - districts.6 The code defines "storage yard"
to include "any . . . portion of a lot which is used for the sole
purpose of the outdoor storage of fully operable motor vehicles .
. . in an orderly manner."7 Since storage yards are listed as
permitted uses in L-1 districts but are not listed under AMC
21.40.050's provisions governing R-3 districts, they are
prohibited uses in R-3 districts. In the present case, the
municipality reasoned that Dykstra was storing too many cars for
an accessory use and was effectively running a storage yard, so
he was using his property for a prohibited use.
On appeal, Dykstra challenges the municipality's
evidence and insists that his hobby of collecting cars amounted
to a permitted accessory use of his property; he also alleges
that the municipality's zoning provisions are unduly vague, thus
violating his constitutional right to due process.
We reject at the outset Dykstra's claim that the zoning
ordinances are unconstitutionally vague. As we have recognized
on prior occasions, a statute cannot be deemed impermissibly
vague merely because its meaning does not seem immediately
obvious and is susceptible to reasonable dispute:
[T]he fact that people can, in good faith,
litigate the meaning of a statute does not
necessarily (or even usually) mean that the
statute is so indefinite as to be
unconstitutional. The question is whether
the statute's meaning is unresolvably
confused or ambiguous after it has been
subjected to legal analysis. If study of the
statute's wording, examination of its
legislative history, and reference to other
relevant statutes and case law makes the
statute's meaning clear, then the statute is
constitutional.[8]
In seeking to determine whether an apparently confusing
statute is impermissibly vague, we must thus look beyond its
literal terms, asking whether careful study of its history,
relevant case law, and other statutory provisions can help
establish a reasonably clear meaning. And even when these
sources fail to resolve confusion, we will not invalidate a
disputed statute as it applies to the case before us when the
facts leave "no question as to [the statute's] applicability to
the particular offense" and the statute can be given a narrowing
construction to ensure that "in the future the type of offense
coming within its purview may be reasonably understood."9
Applying these ground rules, we find no impermissible
vagueness in AMC 21.40.050's description of a permissible
accessory use. As already mentioned, this provision
unquestionably allowed Dykstra to store cars on his property, but
only to the extent that his actions amounted to an "accessory
use."10 The zoning code has expressly limited the permissible
bounds of an accessory use, defining it as a use that can be
considered "customarily subordinate or incidental to and located
on the same lot with a principal use, building or structure."11
And the code leaves no doubt concerning the purpose these
provisions serve in an R-3 district: "to protect, preserve and
enhance the primarily residential character of the district."12
The key issue, then, is whether existing law defines a
reasonably clear point at which storing cars at a residence
ceases to be an incidental use and begins to conflict with a
family neighborhood's primarily residential character. This
issue appears to be one of first impression, both in Alaska and,
more specifically, under Anchorage's zoning code. But case law
elsewhere provides concrete guidance concerning the usual limits
of "accessory use." The term is widely used in other
jurisdictions, where cases uniformly give accessory use a fairly
narrow meaning.
For example, cases speak of an accessory use as one
that is "occasioned by or dependent upon the residential use" and
one that is "minor in relation to the primary use."13 Other
courts have also considered whether specific levels of use
qualify as accessory use. Their decisions generally recognize
that even customarily acceptable accessory uses, such as common
hobbies, have limits. For example, in Colts Run Civic Ass'n v.
Colts Neck Township Zoning Board of Adjustment, a New Jersey
court found that keeping pets was a customary accessory use and
that maintaining a racing pigeon coop was a permissible form of
that use.14 But the court nevertheless warned that "such uses are
not without limitation, which is reached when the use impairs the
residential character of the neighborhood."15
Another helpful New Jersey case involved the storage of
four older, unlicensed cars on a residential property.16 The
borough there conceded that it had no evidence of commercial
activity, but it nonetheless argued that vehicle storage is only
permissible in commercial districts.17 Rejecting this argument,
the court held that keeping cars as a hobby amounts to a valid
incidental use as long as it "is not of such a nature, or
[pursued] to such an extent, as to impair the residential
character of the neighborhood."18 Noting that two- and three-car
families are commonplace, the court concluded that parking one or
two additional cars at a residence "cannot be construed as an
extension of this hobby or habit to such a degree as to impair
the residential character of the district."19
Applying this approach, other courts have not hesitated
to find that accessory-use limitations were violated when
residential property owners carried common hobbies to uncommon
extremes. For instance, the New York Court of Appeals affirmed a
decision denying an application to erect a forty-four-foot rotary
beam amateur radio antenna tower.20 Finding it "clear that, in
the conduct of a hobby, the scale of its operation may well carry
it beyond what is customary or permissible," the court ruled that
the proposed tower was not an accessory use customarily
incidental to a residential neighborhood.21 In another helpful
case, the Supreme Court of Iowa compared the amount of space
allotted to primary and accessory uses of the property in
question, holding that a steel storage building erected next to a
church in a residential district exceeded the permissible bounds
of an accessory building.22
These cases illustrate that the Anchorage zoning code's
flexible approach to accessory use is neither uncommon nor
impermissibly vague; they show that a pliant, objective test of
this kind - one that asks whether a reasonable person would
consider the particular level of use in question as customary and
relatively minor - can be readily understood and applied.
In the present case, even accepting Dykstra's view of
the facts, we are convinced that abundant evidence supports the
conclusion that Dykstra's car collection exceeded the type of
relatively minor, customarily accepted, incidental use that an
objectively reasonable resident would consider to be compatible
with an R-3 district's primarily residential character.
We nevertheless decline to affirm the board's decision
approving the municipality's enforcement order. Although we have
concluded that the evidence establishes a clear violation under
any reasonable view of accessory use, it does not necessarily
follow that the municipality's enforcement order adequately
communicated what Dykstra needs to do to correct his violation.
As we have said, Dykstra's case raised an issue of first
impression in Anchorage. The municipality has cited no local
rulings interpreting Anchorage's zoning ordinances in comparable
situations, so the board has evidently had no prior occasion to
clarify the level of incidental car storage that it would
consider customary in an Anchorage R-3 neighborhood.
This lack of precedent apparently discouraged
Anchorage's building safety enforcement officer from including
advice in the enforcement order about corrective measures Dykstra
could take to bring the property into compliance with the
accessory-use ordinance. The order simply directed Dykstra to
prepare a written plan of abatement for municipal review and
approval.
Ordinarily, of course, we might reasonably expect a
person in Dykstra's shoes to seek guidance in the zoning board's
decision on appeal. Indeed, the zoning code calls for such
guidance, requiring the zoning board of examiners and appeals to
base "every decision" affirming or reversing an enforcement order
"on findings and conclusions adopted by the board."23 The same
provision commands that the board's findings "must be reasonably
specific so as to provide the community and, where appropriate,
reviewing authorities, with a clear and precise understanding of
the reasons for the board's decision."24 Yet despite this
mandate, and despite its own written assurance that it would
approve written findings in Dykstra's case, the board apparently
adopted no findings or conclusions.
Given these circumstances, we think that fairness
requires the board to give Dykstra reasonable notice of the kinds
of steps the municipality would deem sufficient to avoid the
enforcement order's promise of future municipal sanctions for
continuing non-compliance. With no prior zoning decisions
delineating community standards for car storage as an accessory
use in R-3 districts, the board's failure to approve findings
leaves Dykstra with inadequate notice to form a "clear and
precise understanding" of the action the municipality expects him
to take to avoid sanctions for non-compliance with the
enforcement order.
IV. CONCLUSION
We therefore REMAND to the zoning board of examiners
and appeals for entry of specific findings conforming with this
opinion.
_______________________________
1AMC 21.40.050(A) (1996).
2See AMC 21.40.050(B)(1) - (11).
3AMC 21.40.050(C)(4).
4AMC 21.35.020.
5AMC 21.40.015(B).
6AMC 21.40.200(B)(2)(n)(1).
7AMC 21.35.020.
8De Nardo v. State, 819 P.2d 903, 908 (Alaska App. 1991).
9Holton v. State, 602 P.2d 1228, 1236 (Alaska 1979) (citing Stock
v. State, 526 P.2d 3, 8 (Alaska 1974)).
10AMC 21.40.050(C)(4).
11AMC 21.35.020(B).
12AMC 21.40.050(A).
13See, e.g., Perron v. City of Concord, 150 A.2d 403, 406 (N.H.
1959); see also 83 Am. Jur. 2d Zoning and Planning 160 ("The
phrase `incidental and subordinate' in a zoning ordinance
requires that an accessory use be minor in relation to the
permitted use and that it bear a reasonable relationship to the
primary use."); Lawrence v. Zoning Bd. of Appeals, 264 A.2d 552,
554 (Conn. 1969) (defining accessory use as being one that is
subordinate and minor in significance and having a reasonable
relationship with the primary use), quoted in Henry v. Bd. of
Appeals, 641 N.E.2d 1334, 1336 (Mass. 1994); see also Becker v.
Town of Hampton Falls, 117 N.H. 437, 440 (1977) (requiring an
accessory use to be incidental to or in relation to the permitted
use).
14717 A.2d 456, 461-62 (N.J. 1998).
15Id. at 461.
16Borough of Chatham v. Donaldson, 69 N.J. Super. 277 (1961).
17Id. at 280.
18Id. at 282.
19Id.
20Presnell v. Leslie, 3 N.Y.2d 384, 387 (1957).
21Id. at 388, 392.
22Grandview Baptist Church v. City of Davenport, 301 N.W.2d 704,
709 (Iowa 1981) (citing Kowalski v. Lamar, 25 Md. App. 493 (1975)
for the proposition that an accessory structure must be
"subordinate in area, extent, or purpose to the principal use or
structure").
23AMC 21.30.160(B).
24Id.
