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


DAVID DYKSTRA,           )
                              )    Supreme Court No. S-10512
               Appellant,          )
                              )    Superior Court No.
          v.                  )    3AN-00-3744 CI
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.


            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.


            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.


           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
          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


           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.


           We  therefore REMAND to the zoning board of  examiners

and  appeals for entry of specific findings conforming with  this


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
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.
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
23AMC 21.30.160(B).