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Native Village of Eklutna v. Alaska Railroad Corp. (03/12/2004) sp-5787
Native Village of Eklutna v. Alaska Railroad Corp. (03/12/2004) sp-5787
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
NATIVE VILLAGE OF EKLUTNA, )
) Supreme Court No. S-10270
Appellant, )
) Superior Court No.
v. ) 3AN-01-04169 CI
)
ALASKA RAILROAD ) O P I N I O N
CORPORATION and )
MUNICIPALITY OF ANCHORAGE, ) [No. 5787 - March 12, 2004]
)
Appellees. )
________________________________)
)
MUNICIPALITY OF ANCHORAGE, )
)
Cross-Appellant, ) Supreme Court No. S-10279
)
v. )
)
ALASKA RAILROAD )
CORPORATION, )
)
Cross-Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Sara E. Heideman, Hedland,
Brennan, Heideman & Cooke, Anchorage, for
Appellant. William S. Cummings, Ashburn &
Mason, Anchorage, for Appellee/Cross-Appellee
Alaska Railroad Corporation. William W.
Whitaker, Assistant Municipal Attorney, and
William A. Green, Municipal Attorney,
Anchorage, for Appellee/Cross-Appellant
Municipality of Anchorage.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
MATTHEWS, Justice, with whom BRYNER, Justice,
joins, dissenting.
I. INTRODUCTION
This is the third appeal arising out of the Alaska
Railroad Corporation's quarry operations on culturally
significant land adjacent to the Native Village of Eklutna, which
lies within the boundaries of the Municipality of Anchorage.
Eklutna sought a preliminary injunction to enjoin the Railroad
from blasting and all other quarry activities, arguing that the
Railroad does not have a conditional use permit to operate a
gravel pit in that area as Anchorage Municipal Code (AMC)
21.40.240(D)(4) requires. The Municipality of Anchorage
intervened as a plaintiff. The trial court denied Eklutna the
preliminary injunction and entered judgment as a matter of law in
favor of the Railroad, concluding that the Railroad is not
subject to local planning and zoning ordinances. Eklutna and the
Municipality of Anchorage appeal. Because the legislature did
not clearly express its intent to exempt the Railroad from local
zoning laws, we reverse and remand.
II. FACTS AND PROCEEDINGS
A. Factual History
1. Cultural significance and history of the Eklutna
quarry site
The quarry is located on one of two hills, or "knobs,"
adjacent to Eklutna. Dr. James Fall, a cultural anthropologist,
prepared a report for the Railroad that explained the Eklutna
quarry site's significance as the source of the village's name:
The Dena'ina name for the village [of
Eklutna] is "Idlughet," "The Place by the
Plural Objects" . . . . The "plural objects"
referenced in these place names are the two
hills, or to use the term used by many
Eklutna residents today, the "knobs," located
between the village and Knik Arm, just north
and east of the community.
For purposes of this appeal, the parties agree that Eklutna
considers the knobs within the quarry property to be culturally
significant.
The Alaska Railroad, at the time owned by the United
States government, owned and operated the Eklutna quarry from an
undetermined date in the 1940s until 1985.1 In 1985, under the
Alaska Railroad Transfer Act of 1982, the Railroad was turned
over to the State of Alaska, which operated it through the then
newly created Alaska Railroad Corporation.2 In 1987 Eklutna,
Inc. and the Alaska Railroad Corporation entered into an
agreement settling their respective claims over property under
the Alaska Native Claims Settlement Act3 and under the Alaska
Railroad Transfer Act.4 Under that agreement, the Alaska
Railroad Corporation was granted the land containing the quarry
until it ceases to use the land "in connection with furnishing
mass or bulk transportation," at which time the land is to be
conveyed to Eklutna.
2. Previous proceedings regarding the Eklutna quarry
The larger of the two Eklutna knobs has been the
subject of two previous appeals before this court. In July 1995
the National Bank of Alaska, which owned part of the quarry
operated by the Railroad, filed an application for a conditional
use permit to conduct a granite mining operation there.5 The
Municipality of Anchorage's Planning and Zoning Commission
approved the conditional use permit, and the Anchorage Board of
Adjustment and the superior court affirmed this decision.6 We
reversed and remanded in 2000, concluding that "the Board's
finding that `no cultural resources will be adversely affected'
was unsupported by substantial evidence in light of the whole
record."7
The second case, Alaska Railroad Corp. v. Native
Village of Eklutna, arose after the Railroad entered into a
licensing agreement in 1995 granting Damco Paving Corporation the
exclusive use of the quarry for commercial quarrying operations
in exchange for the Railroad receiving royalty payments for the
rock quarried.8 In 1997 Eklutna filed suit to enjoin Damco's
quarrying operations, alleging that the quarry was a
nonconforming use of the land and that neither the Railroad nor
Damco had sought a conditional use permit to proceed with the
commercial quarrying operation.9 In May 1999 the superior court
granted judgment in favor of Eklutna, requiring Damco to obtain a
conditional use permit before it could continue with quarrying
operations.10 We affirmed in February 2002.11 Not addressed in
that decision was the question now before us: whether the
Railroad enjoys sovereign immunity from local zoning laws in its
own operation of the quarry.
3. Quarry operations in recent years
After the superior court entered its decision in
Alaska Railroad Corp. in May 1999,12 the Railroad resumed direct
operation of the quarry. The Railroad began removing rock and
other materials from the quarry in May or June 2000, and it
blasted in the quarry on July 26, 2000.
On January 12, 2001, the Railroad notified Eklutna that
"no operations or blasting would occur at the site until March,
2001." However, at a January 19, 2001 meeting, the Railroad
informed Eklutna that blasting would occur on January 26, 2001.
B. Procedural History
On January 22, 2001, Eklutna filed a complaint and
motion for preliminary injunction to stop the blasting.
Following expedited briefing, an evidentiary hearing, and oral
argument, the trial court denied Eklutna's request for a
preliminary injunction. Although the trial court recognized that
"[t]hese hills are vital cultural resources for the Village
inhabitants and the Denaina Athabascan Indians as a people," it
concluded that the municipal ordinance could not prevent the
Railroad's quarry operation and entered final judgment in favor
of the Railroad as a matter of law, because "the legislature
intended that [the Railroad] not be subject to local planning and
zoning ordinances."
On March 1, 2001, the Municipality of Anchorage moved
to intervene in the litigation in order to seek declaratory
relief endorsing its position that the Railroad must comply with
municipal zoning. The superior court set aside its judgment
while it considered the Municipality's motion. After granting
the motion to intervene and reviewing supplemental briefing by
the parties, the court reinstated its previous final judgment.
Eklutna appealed the judgment and the Municipality filed a cross-
appeal against the Railroad.
III. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo.13 To
obtain summary judgment, the moving party must prove the absence
of a genuine factual dispute and its entitlement to judgment as a
matter of law.14 All reasonable inferences of fact must be drawn
in favor of the nonmoving party.15 Because this appeal presents
an issue of first impression before this court, we adopt the rule
of law that is most persuasive in light of precedent, reason, and
policy.16
B. The Railroad Is Not Immune from Local Zoning Laws.
The Railroad maintains that it is not subject to the
Municipality of Anchorage's zoning ordinance, which would require
it to obtain a conditional use permit before operating the
quarry. It argues that the Alaska Railroad Corporation Act17
(ARCA) and its legislative history show that the legislature
intended the Railroad to be immune from such laws. It further
argues that even if ARCA does not evidence express legislative
intent to immunize the Railroad, Alaska law presumes that the
legislature intends state instrumentalities to be immune from
local zoning in the absence of a legislative statement to the
contrary. Eklutna and the Municipality (collectively "Eklutna")
maintain that because there is no clear and express provision in
the statute regarding whether the Railroad is immune from local
land use regulation, a balancing of interests test should apply
to determine the legislature's intent.
We hold that ARCA provides no clear indication of the
legislature's intent with regard to local land use authority over
the Railroad and that Alaska law does not presume state immunity
to local zoning. Left with unclear indications of intent and no
presumption of immunity, we turn to a balancing of interests test
to determine whether the legislature intended to subject the
Railroad to local zoning ordinances.
1. No provision of the Alaska Railroad
Corporation act clearly indicates legislative
intent to exempt the Railroad from local zoning.
At the outset, it is important to note that ARCA
created a state entity with a unique combination of private and
public powers and immunities. Although it is "an instrumentality
of the state,"18 the Railroad is not part of the Department of
Transportation and Public Facilities (DOTPF) and is not subject
to certain financial and procedural requirements to which other
state agencies are subject, such as the State Procurement Code,
the Fiscal Procedures Act, and the Executive Budget Act.19 With
the Railroad's unique status within the state government in mind,
we examine several provisions of ARCA to determine whether the
legislature intended to immunize it from local zoning.
a. Alaska Statute 42.40.920(b)
Alaska Statute 42.40.920(b) lists statutes from which
the Railroad is exempt. It provides:
(b) Unless specifically provided
otherwise in this chapter, the following laws
do not apply to the operations of the
corporation:
. . . .
(3) AS 35 . . . .
Title 35 of the Alaska Statutes is entitled "Public Buildings,
Works, and Improvements" and authorizes DOTPF to construct almost
all public works in the state.20 Alaska Statute 35.30.020
provides: "A department shall comply with local planning and
zoning ordinances and other regulations in the same manner and to
the same extent as other landowners." In AS 35.95.100(3),
"department" is defined as DOTPF "unless the context requires
otherwise." Other sections of Title 35 refer to "the
department"; this section's shift to "a department" (emphasis
added) implies that it subjects any department to local zoning.21
If AS 35.30.020 applied to the Railroad, then the Railroad would
be subject to local zoning. The Railroad argues that the
converse must be true: by releasing it from AS 35.30.020, the
Railroad claims, ARCA indicates legislative intent to immunize it
from such authority. This argument assumes that in the absence
of AS 35.30.020, the Railroad would be immune to local zoning.
As discussed in Part III.B.2 below, that assumption is faulty.
The provision exempting the Railroad from Title 35 shows only the
legislature's desire that the Railroad not be treated as a
subdivision of DOTPF and that DOTPF not control construction of
Railroad projects. ARCA's legislative history supports this
reading.22
b. Alaska Statute 42.40.930
Alaska Statute 42.40.930 provides: "If provisions of
this chapter conflict with the provisions of other state law, the
provisions of this chapter prevail." The Railroad argues that
this statute "preempts the application of local zoning." But
this provision describing how to sort out conflicts among state
laws gives us no insight into the relationship between the state
law creating the Railroad and local ordinances that may apply to
it.
c. Alaska Statute 42.40.935
Alaska Statute 42.40.935, entitled "Railroad facilities
code compliance," provides that within two years after the date
of transfer, the Railroad "shall develop and adopt a plan to
achieve compliance with," among other laws, "building and related
safety codes applicable to facilities of the [Railroad]."23 The
Railroad employs the canon expressio unius est exclusio alterius
to argue that this provision implies that the legislature
intended immunity for the Railroad. The statute's express
application of certain local regulations, the Railroad argues,
implies that other local regulations, omitted from mention, do
not apply. At the heart of the Railroad's argument is an
interpretation of AS 42.40.935 subjecting the Railroad to local
safety and building regulations. The words of the statute show
that this reading is faulty. For the statute to do what the
Railroad claims, it would need another clause, stating explicitly
that local safety codes govern the Railroad. Instead, it assumes
the existence of "codes applicable to the facilities of the
[Railroad]." The effect of the statute is to lay out a procedure
for compliance with codes whose authority pre-exists the
provision, not to subject the Railroad to that authority. This
section of the statute does not list the local ordinances to
which the Railroad is subject, so expressio unius does not apply
and the fact that zoning is not mentioned sheds no light on
whether the legislature intended to immunize the Railroad.
The assumption that the Railroad is not the exclusive
authority on its property is reflected in at least one other
section of ARCA. The section laying out the Railroad's general
powers, AS 42.40.250, grants the Railroad authority to "maintain
a security force to enforce municipal ordinances . . . with
respect to violations that occur on or to" Railroad property.
This section similarly takes no action to require that municipal
ordinances apply on Railroad property, instead starting from the
assumption that they do. This bolsters the claim that the
Railroad is subject to zoning - if the legislature assumed that
local safety and building regulations apply, it is a fair
inference that it also assumed that land use regulations apply.
d. Alaska Statute 42.40.390
Alaska Statute 42.40.390, entitled "Land Use Rules,"
provides:
The board [of the Alaska Railroad
Corporation] may adopt exclusive rules
governing land use by parties having
interests in or permits for land owned or
managed by the corporation. The power
conferred by this section is exercised for
the common health, safety, and welfare of the
public and to the extent constitutionally
permissible, may not be limited by the terms
and conditions of leases, contracts, or other
transactions.
The Railroad argues that "[t]his grant of power to the ARRC's
board to adopt `exclusive rules governing land use' by its
lessees and permittees would be rendered ineffective if the
[Railroad] was also subject to possibly conflicting zoning
ordinances in each of the municipalities in which it operates."
This provision presents some evidence that the
legislature intended to exempt the Railroad from local zoning
laws. Its reference to "exclusive rules" might indicate that no
other government's rules would apply on Railroad land. But the
term "exclusive" could also be read as a choice-of-law provision
- if the Railroad Board promulgated rules conflicting with local
ordinances, the Railroad's regulations would govern, but in the
absence of a conflict, local rules are unaffected.24
An examination of the provision's legislative history
shows that it should not be read as a clear declaration that the
legislature intended to shield the Railroad from local land use
regulation. At a Senate Transportation Committee hearing on the
Railroad bill, Tamara Cook, a lawyer from the Legislative Affairs
Agency, asked the committee whether the provision was meant to
supersede municipal land use regulation.25 Senator Moss, the
committee chairman, replied that it was not.26 Dave Walsh, a
member of the Alaska Railroad Transfer Team, said, without
contradiction from any legislator or witness, that he did not
think "this section . . . allows the railroad to ignore local
law."27 In a memorandum the next month, Cook again pointed out
that the statutory language might be read to immunize the
Railroad; the memo suggested that if the provision was meant to
provide this immunity, it ought to be clarified.28 At a hearing
following the memo, committee member Senator Halford declared
that he thought the statute should protect "[R]ailroad
operations" from local regulation.29 He asserted that the
provision as it was worded would do so.30 Senator Gilman agreed
that local zoning authority would be problematic, but
nevertheless moved to delete AS 42.40.390.31 Although he
acknowledged Senator Halford's concern, he argued the provision
should be deleted because it was originally added to ensure that
Railroad bonds would be tax exempt under a federal law. The law
had recently been changed to explicitly give the Railroad tax-
exempt status, regardless of whether it had land-use authority,
so the section was no longer necessary.32 A third senator then
noted that the Railroad's status as a tax-exempt bonding
authority was again in question, and the provision was restored
in response.33 The record of the meeting reflects no further
discussion of local zoning authority.
This series of events suggests that AS 42.40.390 should
not be read as clearly granting the Railroad immunity from zoning
ordinances. Most importantly, different members of the
responsible committee, on separate occasions, denied that the
provision was intended as a shield against local regulation -
once by an explicit denial and once by assigning an entirely
different purpose to the section. The possible immunizing effect
was brought to the committee's attention, and one of its members
expressed an interest in providing such protection. The
committee had before it explicit advice from Legislative Affairs
on how to address that concern and ensure immunity. It chose not
to take action. It is often an error to make much of
legislative inaction,34 but in this context, with the problem and
solution plainly before it, we see the legislature's decision as
at least suggesting that AS 42.40.390 was not intended as a
shield against local regulation. Senator Halford's view of the
provision indicates that he did intend such an exemption, but we
cannot say the rest of the committee, let alone the legislature,
agreed with him. Whatever it does stand for, AS 42.40.390 is not
a clear indication of legislative intent to exempt the Railroad
from local zoning.
e. Alaska Statute 42.40.250(13)
The dissenting opinion also enlists AS 42.40.250(13),
which authorizes the Railroad to "apply to the state, the United
States, and foreign countries or other proper agencies for the
permits" required for its operation.35 The list does not include
"municipalities" or "political subdivisions" of the state, as the
dissent points out, but other sections of ARCA do, and a former,
unenacted version of ARCA was amended to drop inclusion of
municipalities. The dissent concludes that the legislature must
have intended that the Railroad should not have to obtain permits
from local authorities. This logic has two essential flaws.
First, it ignores the words "or other proper agencies," which
clearly includes municipalities, regardless of whether they were
explicitly mentioned in other sections of the statute. Second,
it relies on changes made to a version of the act that failed to
pass. The legislature rejected the bill that had been amended to
drop the requirement of compliance with municipal regulations.
We cannot give that amendment any weight in our inquiry.36 If
anything, we might imply from this history that the legislature
was opposed to the exemption, since it turned down the bill that
included it.
2. The legislature did not create the Alaska
Railroad relying on a presumption that state
instrumentalities are immune from local zoning.
The legislature did not express in ARCA a clear intent
to immunize the Railroad from local zoning regulations; nor is
there anywhere in the legislation a clear expression that the
Railroad is to be subject to them. We must therefore decide how
to determine the legislature's intent in order to fill that
statutory gap. The Railroad argues that "Alaska first adopted
its statutory scheme governing relations between the State and
localities" at a time when the black-letter rule was that states
and state agencies were exempt from municipal zoning in the
absence of express statutory language to the contrary. This
presumption, it argues, answers the question left unresolved by
ARCA; because there is no clear statement that local zoning
applies to the Railroad, the legislature must have intended that
it does not.
The Railroad points to the fact that in Alaska "there
are no statutes expressly stating that a state agency is not
subject to local zoning, but there are at least two that
expressly provide for compliance with local zoning." As examples
of statutes in which the Alaska Legislature rejected any
presumption of immunity, the Railroad cites
AS 18.55.100(a)(7)37 AS 40.15.200,38 AS 35.30.020,39 and AS
22.05.025(a)(2)40 - all of which expressly require an agency (or
several) to comply with local zoning laws. These statutes, the
Railroad argues, reflect a baseline presumption that state
instrumentalities are immune from local zoning. Without such a
presumption, state instrumentalities would be subject to local
authority with no legislative action, and these statutes would be
superfluous.
The presumption of immunity the Railroad seeks is a
form of the state's sovereign immunity. When a party invokes a
background rule granting it immunity, stated by neither the
courts nor the legislature of Alaska, it would do well to
confront how to square that rule with this court's unambiguous
summation of the common law of sovereign immunity: "liability is
the rule, immunity the exception."41 Although liability for
negligence is not at issue here, the principle behind our
presumption of liability retains its force: The state is
responsible for its actions to the same degree as a private
party, and those, like the Railroad, who propose a rule weakening
its responsibility have a heavy burden to carry. And by
abolishing the state's common law immunity to suits sounding in
contract, quasi-contract, or tort, the legislature has shown
complementary disfavor for sovereign immunity.42
That said, there is no doubt that the Railroad and
the dissent are correct that under the "traditional" rule, the
state and its instrumentalities would be presumed immune from
local regulation. But this rule is contrary to our general
precept of state liability. There are exceptions to our
principle - for example, as discussed below, the state is
presumed immune from punitive damages awards43 - but neither the
Railroad nor the dissent has made the strong showing necessary to
demonstrate that Alaska operates under a rule presuming immunity.
The history of enactments dealing with the relationship between
state and local authorities, as ably recounted in the dissenting
opinion, does make a plausible argument that the legislature at
one time operated from that presumption. There is another
plausible reading, however.
The legislature has in the past enacted legislation
that restates an underlying presumption. We recognized as much
in Alaska Housing Finance Corp. v. Salvucci, where we noted that
the legislature had "specifically exclude[d] awards of punitive
damages against the State" from AS 09.50.280, part of Alaska's
Tort Claims Act,44 but we were not dissuaded from finding that "a
presumption exists . . . which disfavors punitive damage awards
against the State."45 The presumption means that the state was
not subject to punitive damages awards even before the law was
passed. The law did not change anything; yet the legislature
passed it anyway. But the dissent argues that here we must find
that the legislature's enactments changed the situation - we must
read from the enactments that the legal landscape was different
before they were passed. By the dissent's reasoning in this
case, the Tort Claims Act should have been evidence against the
presumption of state immunity that we affirmed in Salvucci. We
did not employ that logic then, and we will not employ it now.
The legislature may well have passed laws subjecting state
entities to local regulation even though those entities were
already obliged to follow local authority.
But more fundamentally, the dissent misapprehends the
point of our inquiry. We are seeking to interpret the effect of
a gap in ARCA in order to determine whether the Railroad must
comply with local zoning ordinances. Our task, therefore, is to
pinpoint the intent of the legislature that enacted ARCA in 1984,
not to map the understanding of the Alaska Legislature as a
historical body, especially in light of the changing complexion
of the law of state-local relations. Only one legislature
enacted ARCA; only that legislature's intent is of concern today.
Although it is not determinative, the Alaska
Constitution provides some guidance. Article X, section 11
assigns to the state's home rule municipalities "all legislative
powers not prohibited by law or by charter." This provision is
not a bar to the presumption of immunity sought by the Railroad -
leaving state instrumentalities immune to local regulation does
not strip them of a constitutionally guaranteed power. But we
should recall what motivated the framers to include this
provision: "It was hoped that the constitutional delegation of
authority under the terms of Art. X, 11 would lead the courts
of this jurisdiction to take a new and independent approach when
conflicts inevitably arose between the municipalities and the
state."46 "[T]his constitutional provision was adopted in order
to abrogate traditional restrictions on the exercise of local
legislative authority."47 This court is certainly not bound by
some other jurisdictions' rule that state instrumentalities are
always immune absent explicit waiver by the legislature. And in
light of our constitutional commitment to questioning long-held
ideas about the interacting powers of state and local
governments, we should hesitate to assign to the legislature the
failure to rethink the role of municipalities.
With that constitutional directive in mind, we note
that by 1984, when the legislature created the Railroad as an arm
of the state, support for the traditional presumption of immunity
was starting to erode. In 1972 the Supreme Court of New Jersey,
in Rutgers, the State University v. Piluso,48 held that the
particular intent of the legislature in passing the law in
question was paramount. The court therefore discarded the
traditional presumption. Under its new rule, when the
legislature is silent or unclear, instead of presuming that it
intended immunity, courts are to balance the interests at stake
in order to determine the legislature's intent.49 By 1982, the
number of states adopting the test was approaching ten.50 The
high court in at least one other state had hinted it might do so,51
and the American Law Institute had adopted it for its Model Land
Development Code.52 A few years later one state court described
the traditional presumption as "both simplistic and archaic."53
The traditional approach changed because government had changed:
The old tests were adopted at a time when
state government was much smaller. The myriad
of agencies now conducting the functions of
the state have necessarily resulted in a
diminution of centralized control. The
decision of a person administering an
outlying function of a state agency with
respect to the site where this function
should be performed is not necessarily any
better than the decision of the local
authorities on the subject of land use.[54]
As shown by ARCA's creation of a state-owned Railroad, governed
by a board some distance from the center of state government,55
Alaska was as much a part of this trend as any other state.
There is no particular evidence that the legislature
was aware of this development in other states' law, and we do not
claim that it enacted ARCA with the new test in mind. However,
an examination of enactments and other legislative statements
provides evidence that like the courts adopting the balancing
test, the legislature at the time of ARCA was taking notice of
the need for a new balance between state and local governments
and loosening its adherence to the traditional rule. First,
there is a section of ARCA itself, AS 42.40.935(b), discussed in
Part III.B.1.c above, which indicates that the legislature that
enacted ARCA may not have been operating from a presumption of
immunity. This provision requires the Railroad to consult with
local authorities and gives it five years to develop a plan for
compliance with safety and building codes. These apply to other
state instrumentalities through AS 35.10.025, but the Railroad is
exempt from AS 35. Because AS 42.40.935(b) itself does not
contain any language applying the codes to the Railroad, the
provision appears to start from the assumption that they do
apply. Reading the statutes this way admittedly might have the
effect of rendering AS 35.10.025 superfluous - if the 1984
legislature assumed that local codes apply to state
instrumentalities, the provision requiring such compliance is
unnecessary. It is, however, not surprising that if the
legislature's views change over time, some older provisions like
AS 35.10.025, enacted in 1969,56 might be overtaken by changes in
its perspective.
The dissent's own reading of the ARCA legislative
history further illustrates that the 1984 legislature may have
abandoned any older presumption about immunity. As the dissent
recounts the March 15, 1984 Senate Transportation Standing
Committee meeting, Senator Halford sought to preserve AS
42.40.390 in order to "protect the railroad's operations from
local zoning restrictions."57 While we differ with the dissent on
the meaning of the committee's response to Senator Halford's
remark, the nature of his concern is unmistakable: he thought
that the Railroad should be shielded from local zoning, and he
thought that the statutory provision was necessary to give it
that protection. If he thought that the Railroad was
presumptively immune from zoning, he would not have argued for
the inclusion of AS 42.40.390 on those grounds.
Finally, the most recent piece of legislation that the
dissent cites as "central to [its] main premise"58 is the 1976
amendment to AS 35.10.020, including the University of Alaska in
its coverage. The dissent says this change "illustrates
legislative acceptance of the rule of general immunity"59 because
the amendment shows that "[t]he legislature implicitly accepted
the University's view that it was not subject to zoning."60 But
all the amendment shows is that the legislature wanted the
University to comply with local rules, and the University was not
doing so. The legislative history cited in the dissent61 suggests
that the legislature believed that the University was always
subject to local zoning. The amendment's sponsor, Senator Croft,
noted that the legislature, upon passing the original bill, had
realized that "the University considers itself something other
than a portion of the state."62 He went to say that he thought
that the University should abide by the bill, and had he known
"that they wouldn't, [the Senate] would have included it last
year."63 The real purpose of the 1976 amendment may well not have
been to strip any preexisting immunity from the University, but
to clarify that it did not have immunity and ensure that the
University abandon its position that it did. This is not to
argue that the legislature actually did believe that the
University was never immune, but merely to point out that the
evidence of the legislature's adherence to a presumption of
immunity grows weaker as the date moves closer to 1984. By the
time of the enactment of ARCA, the picture is quite murky - too
murky to convince us to throw over the legislature's disfavor for
immunity and say that the legislature acted against the
background of the traditional presumption.
3. The trial court must apply the balancing of
interests test if the Railroad's efforts to comply
with local zoning laws fail.
Because the legislature did not state explicitly
whether it intended the Railroad to be immune and because we do
not find sufficient evidence to impute to it the intent to rely
on a presumption of immunity, we must adopt a test to discern the
legislature's intent. We have never addressed the issue and
there is no consensus among other jurisdictions regarding what
test should be applied to determine whether the legislature
intended a state agency to be immune from local zoning
ordinances.64 In the absence of a clear expression by the
legislature of its intent, there are four tests generally used by
courts to resolve intergovernmental land use disputes: the
"superior sovereign test," the "eminent domain test," the
"governmental function test," and the "balancing of interests
test."65
The superior sovereign test, the source of the
traditional presumption of immunity, focuses on the relationship
between the competing political entities. If the agency whose
activities might be regulated is "superior" to the regulating
authority, it is presumed that the legislature intended the
superior agency to be immune from regulation.66 Where two
governmental entities are of equal rank, the court will resort to
rules of statutory construction to determine whether one's
regulations should govern the other.67 In a case like this one,
where a local authority seeks to regulate a state
instrumentality, the superior sovereign test presumes that the
legislature intended the state instrumentality to be immune.
Under the eminent domain test, if a state agency has
the power of eminent domain, it is immune from local zoning
regulations.68 The theory behind this test is that the power of
eminent domain is inherently superior to the exercise of the
zoning power69 and thus there is a presumption that the
legislature intended the state or its agency to be immune from
local zoning laws if it granted that entity the power of eminent
domain.70
Whether the legislature is deemed to have intended a
governmental entity to be immune from local laws under the
governmental function test depends on the purpose of the intended
land use: If a use furthers a private purpose, as opposed to a
governmental function, there is no immunity.71 A proprietary land
use is said to be one "conferring private advantage pursuant to
permissive legislation"72 or a function "undertaken by a
governmental entity in a business, private, or corporate
capacity."73 In contrast, a governmental function has been
characterized as a "political function or as a function mandated
by statute and performed by the governmental entity in
furtherance of its duty to discharge its obligation for the
health, safety and general welfare of the public."74 Under this
test, "[a] municipal corporation in the exercise of a
governmental function is not subject to zoning laws or ordinances
either within or outside the municipal boundaries."75 This test
was developed as a judicial response to the breadth of the
superior sovereign and eminent domain tests by limiting immunity
to governmental functions,76 and it evolved in the context of
governmental immunity from tort claims.77 Although many courts
have abandoned the governmental function test, a few continue to
apply it.78
All three of these older tests have been heavily
criticized because they have led courts to "frequently resolve[]
such [intergovernmental] conflicts in perhaps too simplistic
terms and by the use of labels rather than through reasoned
adjudication of the critical question of which governmental
interest should prevail in the particular relationship or factual
situation."79 In particular, critics of the superior sovereign
test urged upon us by the Railroad and relied upon by the dissent
cite defects such as "the test's lack of safeguards against
irresponsibility, the practical difficulties inherent in
developing a system of sovereign ranking, the inconsistencies in
the test's application, the inability of the test to deal with
conflicts between governmental units of equal rank, and the
test's failure to recognize that all units of local government
are `equally' agents of the state."80 Courts and commentators
also have criticized the governmental function test as being
difficult to apply and as requiring an often-tenuous distinction
between governmental and proprietary functions.81 We agree that
these three traditional tests are unduly rigid and we join the
growing ranks of jurisdictions who have rejected these tests in
favor of the balancing of interests test.
In Rutgers, the State University v. Piluso, the New
Jersey Supreme Court recognized that the scope of immunity may be
limited, and that its scope is best determined by applying a
"balancing of the interests" test.82 The burden is on the
governmental entity that seeks exemption from local zoning laws
to prove that a balancing of the following factors weigh in favor
of immunity:83 "the nature and scope of the instrumentality
seeking immunity, the kind of function or land use involved, the
extent of the public interest to be served thereby, the effect
local land use regulation would have upon the enterprise
concerned and the impact upon legitimate local interests."84 The
court noted the importance of the flexibility of this test,85 and
emphasized that even where the balance tips in favor of immunity,
"it must not . . . be exercised in an unreasonable fashion so as
to arbitrarily override all important legitimate local
interests."86
Some form of a balancing of interests test has been
embraced in at least fourteen jurisdictions: Delaware, Florida,
Indiana, Iowa, Kansas, Minnesota, Missouri,
New Jersey, New York, North Dakota, Ohio, Oklahoma, Rhode Island,
and South Dakota.87 Others have approved it in dicta.88 A few
other states, while not explicitly adopting balancing tests,
resolve such conflicts by assessing the necessity for the state's
action,89 or the reasonableness of the state's exercise of
immunity,90 or of the zoning ordinance,91 tasks that may easily
turn into a balancing of interests. A similar balancing
methodology has been endorsed by the drafters of the American Law
Institute Model Land Development Code.92
We join those courts, adopting the factors as
articulated by the New Jersey Supreme Court. Resort to the
balancing of interests test is limited by two threshold
requirements. First, because the test aims to discern
legislative intent, direct statutory grants of immunity control
when they exist.93 Second, the court will not resolve conflicts
under the balancing test unless the state has made a reasonable
good faith attempt to comply with local zoning laws.94 This
second requirement is consistent with the premise that "the basic
purpose of the doctrine of exhaustion of administrative remedies
is `to allow an administrative agency to perform functions within
its special competence - to make a factual record, to apply its
expertise, and to correct its own errors so as to moot judicial
controversies.' "95 Requiring the Railroad to first attempt to
comply with Anchorage's zoning procedures enhances the
possibility that the parties will reach an accommodation that
serves the public interest underlying both the zoning power and
the Railroad's quarrying activity without resorting to judicial
remedies.96 Because the Railroad has not yet sought the
conditional use permit required by the Anchorage zoning
ordinance, neither this court nor the superior court should yet
apply the balancing of interests test. If the Railroad continues
to want to operate the quarry, it should apply for a conditional
use permit from the Municipality. If the result of that
application is unsatisfactory to it (or any other interested
party), further proceedings may follow.
The balancing of interests test has been criticized by
the Pennsylvania Supreme Court as amounting to "judicial
legislation" because it yields uncertain results and requires
courts to resolve intergovernmental land use disputes where the
legislature is silent.97 The eminent domain test, the superior
sovereign test, and the governmental function test admittedly may
provide a more clear-cut resolution to intergovernmental zoning
disputes in some cases. But the very fact that the balancing of
interests test does not yield highly predictable results, coupled
with the requirement that the state first attempt to comply with
local zoning laws, may promote good faith attempts at
accommodation by the parties and minimize the need for judicial
intervention.98
We conclude that the balancing of interests test
represents the most enlightened approach to determining the
legislature's intent with regard to the applicability of local
zoning laws to state agencies. We agree with the Minnesota
Supreme Court that "[t]he trend is to limit [the state's] freedom
from regulation, a trend which we believe is well within the
dictates of the public interest, principally because the pungent
realities of urban sprawl and overpopulation have accentuated the
need for land_use planning and control."99 In adopting the
balancing of interests test, we join the ranks of American
jurisdictions that have rejected the formalistic approaches of
the traditional tests.100
C. The Interstate Commerce Commission Termination Act Does
Not Preempt Local Zoning Regulation of the Railroad's
Operations at the Eklutna Quarry.
The Railroad argues that Anchorage may not force it to
obtain a conditional use permit for the quarry because the
federal Interstate Commerce Commission Termination Act (ICCTA)101
preempts Anchorage's zoning ordinances with respect to Railroad
property. "ICCTA abolished the Interstate Commerce Commission,
created the [Surface Transportation Board], and granted the board
jurisdiction over certain interstate rail functions and
proceedings."102 Section 10501 of ICCTA provides, in pertinent
part:
(b) The jurisdiction of the [Surface
Transportation] Board over -
. . . .
(2) the construction, acquisition,
operation, abandonment, or discontinuance of
spur, industrial, team, switching, or side
tracks, or facilities, even if the tracks are
located . . . entirely in one State,
is exclusive. Except as otherwise provided
in this part, the remedies provided under
this part with respect to regulation of rail
transportation are exclusive and preempt the
remedies provided under Federal or State
law.[103]
Eklutna argues that case law in other jurisdictions and
the legislative history of ICCTA indicate that the act preempts
only state economic regulation, and does not disturb local
zoning authority. In determining the scope of federal
preemption, "we `start with the assumption that the historic
police powers of the States were not to be superseded by the
Federal Act unless that was the clear and manifest purpose of
Congress.' "104 " `[T]he purpose of Congress is the ultimate
touchstone' in every pre-emption case."105 Thus, we will evaluate
the regulation the Municipality wishes to apply in order to
determine whether it "st[ands] as an obstacle to the goals of
ICCTA."106
In passing ICCTA, Congress focused on "removing direct
economic regulation by the States."107 One House Report, for
example, noted that state criminal and antitrust law would not be
preempted as applied to railroads, "because they do not generally
collide with the scheme of economic regulation . . . of rail
transportation."108 Similarly, another report contrasts the
states' retained "police powers" to the exclusive "[f]ederal
scheme of economic regulation and deregulation."109 Congress's
focus on economic regulation makes clear that it had no intention
of preempting all state or local regulation that touches
railroads in any way. Instead, "there are areas with respect to
railroad activity that are reasonably within the local
authorities' jurisdiction."110 These areas are defined not by the
subject matter of the regulation - we will not draw a line
between "economic" and "environmental" or "land use" regulations.111
Congress did not intend ICCTA to preempt state or local
regulation with only "a remote or incidental effect on rail
transportation."112 State or local regulation of "manufacturing
activities and facilities not integrally related to the provision
of interstate rail service are not subject . . . to federal
preemption."113 The Surface Transportation Board has provided
examples of allowable regulations, including "a local law
prohibiting the railroad from dumping excavated earth into local
waterways," or a law penalizing the railroad if "harmful
substances were discharged during railroad construction."114
If Anchorage's zoning ordinance survives preemption, it
will at least delay the operation of the quarry by the time
needed for the Railroad to obtain a conditional use permit, and
may bar the Railroad's use of the land altogether, if the permit
is denied. Whether this amounts to undue interference with the
Railroad's operation is a "fact-bound determination."115 Although
obtaining ballast for the Railroad's tracks arguably is
"integrally related" to its operations, the Railroad's own
operation of a gravel quarry is not. Thomas E. Brooks, Chief of
Engineering Services for the Railroad, testified at the
evidentiary hearing that the Railroad generally obtains ballast
by "request[ing] material from commercial sources outside the
railroad or ask[ing] contractors to come into the pit that we
operate." Brooks's affidavit indicates that rock from the
Eklutna Quarry is a superior quality granite and provides a
particularly economical source for ballast. It does not,
however, establish that the economic impact of obtaining ballast
from other sources would be so significant that it would
necessarily interfere with rail operations. Brooks testified that
if the Railroad is enjoined from obtaining ballast from Eklutna,
it could get ballast from another source, as it did for eighty-
two years prior to the quarry's opening.
ICCTA's preemption is aimed at improving the
"nationwide efficiency of the railroad industry," not at stopping
all regulation that "prevents an individual firm from maximizing
its profits."116 Local regulation may bring some hardship or
inconvenience to a railroad without causing the sort of economic
impact that would trigger preemption. Therefore, on the record
before us, the Railroad has not shown that Anchorage's zoning
ordinance will have a more than incidental impact on its
operations; the ordinance is therefore not preempted by ICCTA.
IV. CONCLUSION
We REVERSE the order of the superior court entering
judgment in favor of the Railroad. If the Railroad does not
succeed in obtaining the necessary permit from the zoning
commission, it may seek judicial review in the superior court.
The superior court will then apply the balancing of interests
test, consistent with this opinion, to determine whether the
legislature intended the Railroad to be immune from local zoning
laws.
MATTHEWS, Justice, with whom BRYNER, Justice, joins, dissenting.
The question presented in this case is whether the
state-owned Alaska Railroad is subject to municipal zoning
ordinances. In my opinion the answer is no. In Alaska, state
government activities are exempt from local regulation in the
absence of a statute making them subject to local regulation. No
statute makes the Railroad subject to local regulation.
Therefore, the Railroad is exempt. Although this rationale is,
in my opinion, conclusive and fully sufficient to decide this
case, there is another reason why the Railroad is exempt: the
legislature in passing the Alaska Railroad Corporation Act
indicated its intention to exempt the Railroad from local zoning
regulation. I address each of these reasons in this opinion.
I. Alaska State Government Activities Are Exempt from Local
Regulation in the Absence of a Statute Subjecting Them to
Local Regulation.
The traditional view is that state agencies are immune
from municipal zoning in the absence of a statute making them
subject to municipal zoning.117 As the following discussion of the
history of AS 35.30.020 and .030 will make clear, the Alaska
Legislature has accepted this rule in enacting these statutory
sections and their precursors. I start with these sections as
they appear now. Alaska Statute 35.30.020 provides:
A department shall comply with local
planning and zoning ordinances and other
regulations in the same manner and to the
same extent as other landowners.
Alaska Statute 35.30.030 provides:
If a department clearly demonstrates an
overriding state interest, waiver of local
planning authority approval and the
compliance requirement may be granted by the
governor. The governor shall issue specific
findings giving reasons for granting any
waiver under this section.
There are two other sections in AS 35.30. Both of them are
helpful in understanding AS 35.30.020 and .030. Alaska Statute
35.30.010 provides:
(a) Except as provided in (b) of this
section, before commencing construction of a
public project,
(1) if the project is located in a
municipality, the department shall submit the
plans for the project to the planning
commission of the municipality for review and
approval;
(2) if the project is located within two
miles of a village, the department shall
submit the plans to the village council for
review and comment;
(3) if the project is located within
one_half mile of the boundary of an area
represented by a community council
established by municipal charter or
ordinance, the department shall submit the
plans to the community council for review and
comment.
(b) Prior approval by a municipal
planning commission may not be required
before the commencement of construction of a
highway or local service road if
(1) the department and the municipality
have entered into agreement for the planning
of the project under AS 19.20.060 or
19.20.070 and the plans for the project are
completed in accordance with the terms of
that agreement;
(2) the municipality has adopted a
municipal master highway plan under AS
19.20.080 and the highway or local service
road is consistent with the plan adopted; or
(3) the department has entered into
agreement with the municipality for the
planning of transportation corridors under AS
19.20.015 and the plans for the project are
completed in accordance with the provisions
of that agreement.
(c) If final disapproval by resolution
of the governing body of the affected
municipality or village is not received
within 90 days from the date the project was
submitted to the municipality or village, the
department may proceed with the project.
The other section is AS 35.30.040. It provides:
In this chapter
(1) "public project" means a public
building or other structure, public work, or
other facility, highway, or local service
road constructed or maintained by a
department; the term includes the acquisition
by purchase or agreement of land and rights
in land for materials and the extraction or
removal of materials necessary for completion
of a highway under AS 19.05.080 _ 19.05.120;
(2) "village" means an unincorporated
community of the unorganized borough where at
least 25 people reside as a social unit.
The definitions section of Title 35 is also important. Alaska
Statute 35.95.100(3) provides:
In this title, unless the context requires
otherwise,
. . .
(3) "department" means the Department of
Transportation and Public Facilities[.]
The substance of present day AS 35.30.020 and 35.30.030
were first enacted in 1975. Chapter 96, section 1, SLA 1975.
The features now found separately in sections .020 and .030, the
duty of compliance and waiver of compliance, were both
incorporated in a single section, AS 35.10.020. As it was
enacted in 1975, this section read:
Before the construction of a public
works in a municipality, the department shall
confer with the planning commission of the
municipality to determine that the welfare of
the public is properly protected and its
agencies and instrumentalities shall comply
with all local planning and zoning ordinances
and the local regulations in the same manner
and to the same extent as other landowners.
However, if a state agency clearly
demonstrates an overriding state interest, a
waiver to the compliance requirements may be
granted by the governor.
The history of the 1975 version of AS 35.10.020 began
in 1957. Chapter 152 Laws of Alaska 1957, Title III, article 3,
section 2, required the Department of Transportation and Public
Facilities' territorial predecessor, the Alaska Highway and
Public Works Board, to confer prior to the construction of any
public work within a municipality "with the planning commission
of such municipality to determine that the welfare of the public
is properly protected." There was no requirement that the board
also comply with local planning and zoning ordinances, only that
it confer.
A change with respect to local building codes took
place in 1968. Chapter 89, section 1, SLA 1968, was enacted
requiring compliance with local building codes, but not local
zoning ordinances. The 1968 enactment was codified as AS
35.10.025. As enacted it read, and still reads, as follows:
A public building shall be built in
accordance with applicable local building
codes including the obtaining of required
permits. This section applies to all
buildings of the state and corporate
authorities of the state.[118]
An important change was made to AS 35.10.020 in 1974.119
Previously, as noted, the highway board, and after statehood, the
department, had to confer with local authorities to determine
that the welfare of the public was properly protected prior to
going forward with construction in a municipality. In 1974 an
additional requirement was imposed relating to compliance with
zoning ordinances. Under the new requirement, uses of property
sold or leased by the state to other than a public entity had to
comply with local zoning ordinances as long as the property was
"held in private use." In full, as amended in 1974, AS 35.10.020
provided:
Before the construction of a public
works in a municipality, the department shall
confer with the planning commission of the
municipality to determine that the welfare of
the public is properly protected. Real
property of the state which is leased, sold,
exchanged, or otherwise transferred for value
to other than a public entity shall conform
so long as held in private use to local
planning and zoning ordinances and
regulations in the same manner and to the
same extent as real property of other
landowners subject to the local ordinances
and regulations, unless the local ordinances
and regulations are less stringent than
comparable state standards.
(Emphasis added.)
Having described the history of AS 35.10.020 thus far,
it is worthwhile to ask whether a reasonable argument could be
made in light of AS 35.10.020 as it existed in 1974 that projects
on state land that remained in state hands were required to
comply with local planning and zoning ordinances. The answer is
clear that they were not. The unmistakable meaning of section
.020 as of the 1974 amendment is that while projects on state
land that had been transferred for private use were required to
conform with local zoning ordinances "so long as held in private
use," projects on state land not held in private use did not have
to conform to local zoning requirements. The 1974 amendment
clearly illustrates the rule that state projects are exempt from
local zoning unless a statute provides otherwise.
As described above, in 1975 AS 35.10.020 was amended
again. Instead of being limited to state property that had been
transferred for private use, the requirement of compliance with
local planning and zoning ordinances subject to a waiver granted
by the governor was made generally applicable.
In 1976 another change was made that again illustrates
legislative acceptance of the rule of general immunity. In 1976
the University of Alaska was made subject to AS 35.10.020.120 As
amended in 1976 the statute had the familiar form of the 1975 act
requiring both a conference with local officials and compliance
with local ordinances, with the latter subject to gubernatorial
waiver. The statute read:
Before the construction of a public
works in a municipality, or a building or
other structure by the University of Alaska
in a municipality, the department or the
University of Alaska, as appropriate, shall
confer with the planning commission of the
municipality to determine that the welfare of
the public is properly protected. The
University of Alaska or the department and
its agencies and instrumentalities shall
comply with all local planning and zoning
ordinances and the local regulations in the
same manner and to the same extent as other
landowners. However, if a state agency or
the University of Alaska clearly demonstrates
an overriding state interest, a waiver to the
compliance requirements may be granted by the
governor.
The University was added to the coverage of AS
35.10.020 because it took the position that it did not have to
comply with local planning and zoning ordinances and the
legislature thought it was desirable that the University be
required to so comply.121 The hearing concluded with
Representative Cotton and Senator Croft agreeing that another
look should be taken in the future to determine whether the
statute was still insufficiently comprehensive. Representative
Cotton stated: "It was pointed out to me at one time that public
works was somewhat restrictive and really didn't take everything
that a lot of people would like to have seen into consideration."
Senator Croft responded: "I think that's a valid point and sure
would be glad to work on that."
The rule that state government entities are not subject
to local zoning in the absence of a statute is illustrated by the
1976 amendment. The University had taken the position that it
was not subject to zoning because no statute provided that it was
subject to zoning. The legislature implicitly accepted the
University's view that it was not subject to zoning but decided
that as a policy matter that the University should be subject to
zoning and amended AS 35.10.020 to include the University.
Nothing occurred to indicate that the legislature had
altered the general rule of immunity in 1984 when the legislature
enacted the Alaska Railroad Corporation Act.122 As a part of that
act, AS 42.40.920 specifically provided that Title 35 of the
Alaska Statutes would not apply to the Railroad. Thus AS
35.30.020 and .030 do not apply to the Railroad. This exemption
put the Railroad in the position that the University had been in
prior to the 1976 amendment, and in the position that all state
projects had been in prior to the 1975 amendment - immune from
local planning and zoning ordinances.
Having stated this conclusion, I do not mean to imply
that no changes were made between 1976 and 1984 to AS 35.30.020
and .030. There was a change in 1977, but it did nothing to
erode the principle that state agencies do not have to comply
with local zoning unless required by statute. The change is
interesting because it laid the groundwork for a broadening in
the coverage of AS 35.30.020.
In 1977, AS 35.30.020 as it had existed was broken into
two parts, with .020 requiring compliance with local planning
ordinances and .030 providing for a waiver by the governor.
Other changes were also made. Instead of referring to "the
department" as previously, .020 was written in its present form
referring to "a department." Likewise, the waiver provisions put
in .030 referred to "a department."
In the definitions section of the 1977 enactment, AS
35.30.040(1) stated: "In this chapter (1) `department' means the
Department of Transportation and Public Facilities, and the
University of Alaska." But this was changed in 1987. Alaska
Statute 35.30.040(1) was repealed.123 This was the section that
defined the "department" in the 1977 act to include the
University of Alaska. Did this mean that the 1987 legislature no
longer intended the University of Alaska to be subject to local
zoning ordinances? Or did it mean that the legislature believed
that without the definition the University would be covered
because it is "a department"? It is clear that no substantive
change was intended. The changes were described by the title of
the act as merely "corrective amendments to the Alaska Statutes
as recommended by the revisor of statutes." In a memorandum
dated May 17, 1987, the revisor wrote that section AS
35.30.040(1) was "proposed for repeal" because the definition of
"department" was "redundant to a definition in AS 35.25.020 that
applies to all of AS 35."124 In the same memo the revisor refers
to section 57, among other sections, as a section that "repeal[s]
provisions that are duplicated by other applicable law, and
make[s] conforming changes in related provisions."125 Since the
1987 amendment disclaims any intent to make a substantive change,
it seems that the revisor interpreted "a department" in AS
35.30.020 and .030 to include all departments of state
government, including the University of Alaska. Otherwise the
change would have been substantive, deleting the University from
coverage of the statute. As the legislature enacted the change
suggested by the revisor, the legislature endorsed the revisor's
view.
It thus appears that AS 35.30.020 and .030 now include
all departments of state government that are not excluded by
other statutes. But this interpretation is not central to the
main premise of this dissent, which is simply that the evolution
of .020 and .030 plainly shows that the legislature has accepted
the traditional rule that state entities that are not made
subject to local zoning by statute are not subject to local
zoning.126
In summary, the history related above shows that state
entities and state activities not covered by .020 and .030 and
their predecessors were assumed and intended by the legislature
to be immune from local zoning. Acceptance of the rule of
immunity is clearly shown in 1974 when state lands conveyed or
leased to private entities were made subject to local zoning so
long as they remained in private hands, but state lands not
meeting these conditions remained immune from local zoning. It
is also clearly shown in 1976 when the legislature included the
University in the coverage of .020 because the University was not
originally included and it was thought desirable to make the
University comply with local zoning. Nothing occurred in the
intervening years between the 1974, 1975, and 1976 enactments and
1984 to change the rule of general state immunity. Thus when the
legislature enacted the Alaska Railroad Corporation Act and
exempted the Railroad from coverage by .020 and .030, the
Railroad retained the immunity from local zoning that it had as
an instrumentality of the federal government because no statute
made it subject to local zoning.
II. The Alaska Railroad Corporation Act Exempts the Railroad
from Local Zoning.
Although the rationale that state agencies are immune
from local zoning unless a statute makes them subject to local
zoning expressed above is sufficient to decide this case, there
are a number of provisions in the Alaska Railroad Corporation Act
that affirmatively indicate that the Railroad was intended to be
exempt from local planning and zoning control. These include:
a. AS 42.40.390.
This section provides:
The board may adopt exclusive rules
governing land use by parties having
interests in or permits for land owned or
managed by the corporation. The power
conferred by this section is exercised for
the common health, safety, and welfare of the
public and to the extent constitutionally
permissible, may not be limited by the terms
and conditions of leases, contracts, or other
transactions.
By this section the Railroad Board is given the power
to "to adopt exclusive rules governing land use" for railroad
land. The second sentence of this section confirms that the
exclusive rules have the same purpose as a planning and zoning
ordinance, namely to provide "for the common health, safety, and
welfare of the public." The word "exclusive" by definition
excludes the possibility that a municipality could impose rules
governing land use of railroad property.
The legislative history of this section of the Alaska
Railroad Corporation Act confirms that the legislature was aware
that section .390 placed railroad lands beyond the control of
local zoning. Tamara Cook, Deputy Director of the Division of
Legal Services of the Legislative Affairs Agency, first raised a
question as to the effect of section .390 on March 1, 1984, at a
Senate Transportation Committee meeting. She asked, "what does
it do, is this an effort to supercede municipal land use
regulations? Is that what this does? Does this say that
property controlled by the railroad is not subject to municipal
land regulations? Is that what this is?"127 Chairman Moss
initially responded in the negative: "I don't believe that that
was the original intent on it. Maybe, I'm wrong on it." But
Cook persisted, stating: "What this says though, it says the
board may adopt exclusive regulations governing land use, which
means that the board would then be operating as a planning
commission." After further discussion Cook again explained that
the Railroad could "attempt to put a subdivision" on acquired
property "and not be subject to municipal zoning ordinances."
She recommended that "until this section is made a lot clearer I
think the committee ought to consider dropping it entirely."
Chairman Moss observed that this would be "one way to eliminate
the problem." Senator Gilman agreed that "removing it is fine"
but observed that as to a version of the legislation in a prior
session there were reasons why the section was written as it was,
but he could not remember what they were. He suggested that he
be allowed to "revisit the file." Chairman Moss agreed: "Let's
do that before we delete this section" and proceeded to adjourn
the meeting.
Cook put her concerns in writing, in a memorandum dated
March 12, 1984, to the Chair of the Senate Transportation
Committee. Observing that there are two alternative effects of
AS 42.40.390, she again recommended that section .390 be
clarified or deleted:
Section 42.40.390 appears to be an attempt to
grant the power of land use regulation, such
as platting and zoning, to the railroad
corporation, which would contravene the
requirement contained in Article X, section 2
that all local government powers shall be
vested in boroughs and cities. If, on the
other hand, the purpose of the section is to
exclude rail property from municipal land use
regulation, that should be done specifically.
I would recommend that the section be
clarified or eliminated.
It is worth noting that while Cook states that there are two
possible interpretations of section .390 - that it grants zoning
power to the Railroad or that it excludes railroad property from
municipal land use regulation - under either interpretation the
Railroad would be immune from local zoning. Under the first, a
grant of exclusive zoning power to the Railroad would necessarily
exclude the power of a municipality to zone the same property.
Under the second, the exclusion of municipal zoning is the
explicit purpose.128 Section .390 was retained as written, despite
Cook's suggestion that it be clarified or deleted.
The question of retaining or deleting section .390 was
taken up for the last time by the Senate Transportation Standing
Committee on March 15, 1984. The minutes of that meeting
indicate that Senator Gilman initially sought to remove AS
42.40.390. But Senator Halford responded "that there should be a
way to protect railroad operations. That would protect the
railroad's operations from local zoning restrictions."129 The
matter was discussed further. Senator Gilman stated that .390
"originally was put in at a time when it was anticipated that
they were going to have to establish some rationale for why the
railroad should get a tax-exempt bonding authority." He noted
that this was no longer a problem. But Senator Faiks stated that
pending in the House of Representatives was a bill that would
take away tax-exempt status from the Railroad. She argued that
section .390 should be left in the bill. This was the final
resolution.
The discussion reveals that the Senate Committee
clearly understood that .390 would protect the Railroad's
operations from local zoning restrictions. No one argued with
Senator Halford's characterization that this was the section's
direct function. Senator Gilman's observation that the purpose
of section .390 was to guarantee tax-exempt bonding status is
consistent with section .390's function. In order to have tax-
exempt bonding status, it was believed that the Railroad needed
land use regulation powers comparable to those of a local
government. Such powers were granted. It does not matter
whether the powers were granted primarily so that the Railroad
could issue tax-free bonds or so that the Railroad would not be
disturbed in its operations by municipal zoning. Whatever the
dominant motive may have been, the grant of exclusive land use
regulatory power was the same.
b. AS 42.40.920(b)(3).
This is the section that declares that AS 35 does not
apply to the Railroad. Since, as discussed above, AS 35 contains
AS 35.30.020 requiring "a department" to comply with local
zoning, exempting the Railroad from AS 35 indicates, among other
purposes, an intent to exempt the Railroad from local zoning.
c. AS 42.40.935(b).130
This section required the Railroad to comply with local
building and safety codes within five years, subject to waiver by
the Commissioner of Public Safety. Because AS 35 is not
applicable to the Railroad, AS 35.10.025,131 which requires all
public buildings to comply with local building codes, did not
apply to the Railroad. Recognizing that a transition to
compliance with local building codes was desirable, subject to an
executive waiver, the legislature enacted AS 42.40.936(b). Its
enactment shows legislative awareness that in light of the fact
that AS 35 was made inapplicable to the Railroad, special
measures were needed in areas where it was intended to make the
Railroad subject to local laws. The omission of a similar
measure relating to compliance with local zoning codes thus seems
deliberate and purposeful.
d. AS 42.40.250(13).132 (13) apply to the state, the United
States, and foreign countries or other proper agencies for the
permits, licenses, rights_of_way, or approvals necessary to
construct, maintain, and operate transportation and related
services, and obtain, hold, and reuse the licenses and permits in
the same manner as other railroad operators[.]
Section .250 lists the general powers of the Alaska
Railroad Corporation. Subsection (13) authorizes the Railroad
Corporation to apply to various entities for permits or approvals
necessary to construct various facilities. The Railroad is
authorized to apply to the "state, the United States, and foreign
countries or other proper agencies." But the list pointedly does
not include political subdivisions of the state. By contrast,
subsection (9) of section .250 expressly mentions political
subdivisions. Subsection (13) thus suggests that the legislature
thought that it would not be necessary for the Railroad to apply
to political subdivisions for approval to obtain permits to
construct and operate facilities.
The legislative history of subsection (13) indicates
that the omission of political subdivisions was not accidental.
Versions of the Alaska Railroad Corporation Act were considered
in 1982. Senate Bill 212 in 1982 contained a section entitled
"Licenses and Permits." It provided:
Whenever the laws of a municipality, the
state, or the United States require a license
or a permit to undertake certain activities
or perform an act, the authority, prior to
undertaking the activity or performing the
act, shall comply therewith to the same
extent as the state, except as otherwise
provided in this chapter.
A notation in the legislative folio indicates that the Railroad
requested that the word "municipality" be deleted from this
provision. Offered as a reason for this was that "the railroad
presently negotiates with a number of municipalities regarding
crossings, traffic signals, etc. If the municipalities were
granted authority to regulate the railroad's passage through
their boundaries, the railroad's transportation of goods and
services would be so erratic as to be totally nonoperable."133
The specific examples offered by the Railroad,
"crossings, traffic signals, etc.," may not be subjects governed
by typical zoning codes, but the more general topic of "passage
through municipal boundaries" potentially is. Further, the bill
applied to all permits "to undertake certain activities or
perform an act," terms that readily encompass permits such as
conditional use permits needed for zoning compliance. If the
legislature intended the Railroad to be subject to local zoning
codes - regulatory systems in which permits of many types are
standard fare - it would not have deleted political subdivisions
from the list of government entities to which the Railroad is
authorized to apply for permits.
In summary, the legislature in section .390 of the
Alaska Railroad Corporation Act gave the board exclusive
authority to adopt rules governing railroad land. This
necessarily excluded local zoning authority over the same land.
The Legislative Affairs Agency and a legislative committee
recognized that section .390 had this effect. A number of other
provisions of the Alaska Railroad Corporation Act confirm that
the legislature intended that the Railroad was to be exempt from
local zoning.
III. Conclusion
The traditional rule that state entities are not
subject to local zoning unless a statute so provides has been
repeatedly recognized by the Alaska Legislature. The Alaska
Railroad is exempt from local zoning under this rule because no
statute makes it subject to zoning. In addition, provisions of
the Alaska Railroad Corporation Act show that the legislature
intended the Alaska Railroad Corporation to be exempt from local
zoning.
For these reasons, I dissent.
_______________________________
1Alaska R.R. Corp. v. Native Vill. of Eklutna, 43 P.3d 588, 590
(Alaska 2002).
245 U.S.C. 1201-1214 (1982).
343 U.S.C. 1601-1629 (1971).
445 U.S.C. 1201-1214 (1982).
5Native Vill. of Eklutna v. Bd. of Adjustment, 995 P.2d 641, 642
(Alaska 2000).
6Id. at 643.
7Id. at 645.
843 P.3d 588, 590 (Alaska 2002).
9Id.
10Id. at 589.
11Id. at 592-95.
12Id. at 590.
13State v. Alaska Civil Liberties Union, 978 P.2d 597, 603 (Alaska
1999).
14Id.
15McGlothlin v. Municipality of Anchorage, 991 P.2d 1273, 1277
(Alaska 1999).
16Taranto v. North Slope Borough, 992 P.2d 1111, 1113 (Alaska
1999).
17AS 42.40.010.See AS
18AS 42.40.010.
19See AS 42.40.920(b)(4)-(6).
20See AS 35.05.010.
21But see Rabbit Creek Shooting Range Improvement, 1981 Informal
Op. Att'y Gen. 867, 867-68; 1981 WL 38706, at *1 (Alaska, July
13, 1981).
22See First Reading of HB 512 before the House Transp. Standing
Committee at 0275 (Alaska, May 13, 1984) (statement of Mark
Hickey) (describing steps taken by drafters to ensure that
Railroad was free of DOTPF oversight); House Transp. Standing
Comm. meeting on HB 512 at 0145 (Alaska, Feb. 22, 1984)
(statement of Chairwoman Representative Cato ) ("[T]he senate . .
. [was] told they would have to put [the Railroad] under one of
the departments. They chose the Department of Commerce and
Economic Development as they felt that was where it belonged
rather than under DOT/PF.").
23AS 42.40.935(b).
24The Railroad Board has not promulgated any such regulation.
Contrary to the dissent's assertion (dissent at 49 n.12) a choice-
of-law rule does not grant any immunity or authority, but only
resolves conflicts between laws.
25Hearing on SJR 43 and SB 352 Before the Senate Transp. Standing
Comm. (Alaska, Feb. 22, 1984) (statement of Tamara Cook, Deputy
Director of the Division of Legal Services, Legislative Affairs
Agency).
26Id. (statement of Senator Moss).
27Id. (statement of Dave Walsh).
28Memorandum from Tamara Cook, Deputy Director of the Division of
Legal Services, Legislative Affairs Agency to Senator Moss,
Chairman, Senate Transp. Comm. 2 (March 12, 1984) ("If . . . the
purpose of the section is to exclude rail property from municipal
land use regulation, that should be done specifically. I would
recommend that the section be clarified or eliminated.").
29Hearing on SB 352 Before the Senate Transp. Standing Comm.
(Alaska, March 15, 1984) (statement of Senator Halford).
30Id.
31Id. (statement of Senator Gilman).
32Id.
33Id. at 307, 321 (statement of Senator Faiks, motion of Senator
Gilman).
34See Cmty. For Creative Non_Violence v. Reid, 490 U.S. 730, 749
(1989) ("Ordinarily, Congress' silence is just that - silence.").
35Dissent at 52-53.
36Cf. Westlands Water Dist. v. Natural Res. Def. Council, 43 F.3d
457, 462 (9th Cir. 1994) (refusing to "transfer[]" legislative
history from one bill to another); Troy Gold Industries, Ltd. v.
Occupational Safety & Health Appeals Bd., 231 Cal. Rptr. 861, 868
n.6 (Cal. App. 1986) ("[A] single unenacted bill . . . is
meaningless as an expression of legislative intent as are
statements of the individual legislators in favor of the rejected
bill."); 2A Norman J. Singer, Statutes and Statutory Constr.
48:01, at 411 (6th ed. 2000) ("[S]tatements made by persons in
favor of a rejected or failed bill are meaningless . . . .").
37"[T]he [Alaska Housing Financing C]orporation has all powers
necessary to . . . provide, subject to the applicable planning,
zoning, sanitary, and building laws, ordinances, and regulations
for the construction, improvement, alteration, or repair of a
housing or public building project . . . ." AS 18.55.100(a)(7)
(emphasis added).
38"All subdivisions of land made by the state, its agencies,
instrumentalities, and political subdivisions are subject to . .
. home rule ordinances or regulations governing subdivisions, and
shall comply with ordinances and other local regulations . . .
in the same manner and to the same extent as subdivisions made by
other landowners." AS 40.15.200.
39"A department shall comply with local planning and zoning
ordinances and other regulations in the same manner and to the
same extent as other landowners." AS 35.30.020.
40"[I]n the exercise of its authority [to construct court
facilities], the supreme court shall cooperate and coordinate
with the Department of Transportation and Public Facilities so
that court facility construction projects are carried out in
accordance with the statutes and regulations applicable to state
public works projects." AS 22.05.025(a)(2).
41Adams v. State, 555 P.2d 235, 244 (Alaska 1976); see also
Johnson v. Alaska State Dept. of Fish & Game, 836 P.2d 896, 905
(Alaska 1991); Freeman v. State, 705 P.2d 918, 920 (Alaska 1985).
42AS 09.50.250; see also Estate of Arrowwood By and Through Loeb
v. State, 894 P.2d 642, 644 (Alaska 1995). Immunity is retained
for certain types of suits, including those arising from "a
discretionary function or duty" of the state. AS 09.50.250(1-5);
see also, e.g., Estate of Himsel v. State, 36 P.3d 35, 40 (Alaska
2001).
43Alaska Housing Finance Corp. v. Salvucci, 950 P.2d 1116, 1123
(Alaska 1997).
44950 P.2d at 1123.
45Id.
46Jefferson v. State, 527 P.2d 37, 42-43 (Alaska 1974); see also
Area Dispatch, Inc. v. City of Anchorage, 544 P.2d 1024, 1025-27
(Alaska 1976).
47Simpson v. Municipality of Anchorage, 635 P.2d 1197, 1200
(Alaska App. 1981).
48286 A.2d 697 (N.J. 1972).
49Id. at 702-03. The specific factors to be considered are
discussed below in Part III.B.3.
50In Blackstone Park Improvement Ass'n v. State Bd. of Standards &
Appeals, 448 A.2d 1233, 1239 (R.I. 1982), the Rhode Island
Supreme Court counted nine states adopting the test, and added
itself as the tenth. Our review of the cases, however, indicates
that several had only adopted part of the test or had only
indicated in dicta that the test might be the right one.
51Kunimoto v. Kawakami, 545 P.2d 684, 687 (Haw. 1976) .
52See Model Land Dev. Code 7_301 to 304 and 12_201 (1975).
53Hayward v. Gaston, 542 A.2d 760, 766 (Del. 1988) ("We find that
the [superior sovereign] hierarchical approach to land use
disputes between competing governmental entities, as urged by the
Department, is both simplistic and archaic.").
54Blackstone Park Improvement Ass'n, 448 A.2d at 1237-38 (quoting
City of Temple Terrace v. Hillsborough Association for Retarded
Citizens, Inc., 322 So. 2d 571, 578-79 (Fla. Dist. App. 1975),
aff'd, 332 So. 2d 610 (Fla. 1976)).
55See AS 42.40.020 (setting out makeup of Railroad's Board of
Directors).
56Ch. 89, 1, SLA 1968.
57Hearing on SB 352 Before the Senate Transp. Standing Comm.
(Alaska, March 15, 1984) (statement of Senator Halford).
58See dissent at 46.
59Dissent at 49.
60Dissent at 44.
61Dissent at 42 n.5.
62Track 1, 16:00-19:20 - 1976 Senate Committee: Community &
Regional Affairs.
63Id.; see also Track 2, 0:27-4:00 - House Committee: Community &
Regional Affairs (statement of Senator Croft) ("[W]e thought we
were picking up the University but there was a drafting
mistake.").
64See generally Elaine Marie Tomko-DeLuca, Annotation,
Applicability of Zoning Regulations to Governmental Projects or
Activities, 53 A.L.R. 5th 1 (1997) (surveying tests in various
jurisdictions for determining legislative intent to immunize
state agencies from local zoning laws).
65See Laurie Reynolds, The Judicial Role in Intergovernmental
Disputes: The Case Against Balancing, 71 Minn. L. Rev. 611, 612-
13 (1987). The Pennsylvania Supreme Court has adopted a fifth
test, the "legislative intent" test, which provides that
"legislative intent may be determined by a consideration, inter
alia, of the consequences of a particular interpretation."
Commonwealth v. Ogontz Area Neighbors Ass'n, 483 A.2d 448, 454
(Pa. 1984). The parties have not addressed the merits of this
test. We decline to adopt the legislative intent test because it
appears to be a modified balancing of interests test but with
less guidance as to the factors to be considered.
66J. Scott MacBeth, Zoning and Planning: The Economics of State
Land Use and the Balancing of Interests Test, 30 Washburn L.J.
148, 151 (1990).
67City of Richmond v. Bd. of Supervisors, 101 S.E.2d 641, 646 (Va.
1958).
68MacBeth, supra note 66, at 152. For a survey of cases in which
the courts have applied the eminent domain test, see Tomko-
DeLuca, supra note 64, at 22.
69Note, Governmental Immunity from Local Zoning Ordinances, 84
Harv. L. Rev. 869, 874 (1971).
70MacBeth, supra note 66, at 152.
71City of Albuquerque v. Jackson Bros., Inc., 823 P.2d 949, 951
(N.M. App. 1991) (citing 6 Patrick J. Rohan, Zoning and Land Use
Controls 40.03[2] (a) (1978)).
72Note, Municipal Power to Regulate Building Construction and Land
Use by Other State Agencies, 49 Minn. L. Rev. 284, 295-96 (1964).
73Tomko-DeLuca, supra note 64, at 2[a].
74Id.
758 Eugene McQuillin, Municipal Corporations 25.15, at 55-56
(West Group ed., 3d ed. 2002) (citations omitted).
76Reynolds, supra note 65, at 621.
77MacBeth, supra note 66, at 153.
78Tomko-DeLuca, supra note 64, at 10-1; see also, e.g., Town of
Bourne v. Plante, 708 N.E.2d 103, 105 (Mass. 1999); Lane v.
Zoning Bd. of Adjustment, 669 So. 2d 958, 959 (Ala. Civ. App.
1995).
79Rutgers, the State University v. Piluso, 286 A.2d 697, 701 (N.J.
1972); see also 4 Sandra M. Stevenson, Antieau's Local Gov't Law
57.08[3], at p. 57-107 (2d ed. 2002) (calling balancing of
interests "more realistic than other tests" such as the
governmental function test); Note, supra note 69, at 872
("Inconsistent results proliferate due largely to state court
reliance upon artificial labels to rationalize `governmental
immunity' from local zoning ordinances . . . .").
80Reynolds, supra note 65, at 619-20 (citations omitted); see also
Blackstone Park Improvement Ass'n, 448 A.2d at 1238; MacBeth,
supra note 66, at 152.
81See, e.g., Township of Washington v. Village of Ridgewood, 141
A.2d 308, 311 (N.J. 1958); 2 Kenneth H. Young, Anderson's
American Law of Zoning 12.05, at 507-11 (4th ed. 1996).
82286 A.2d 697, 702-03 (N.J. 1972).
83City of Crown Point v. Lake County, 510 N.E.2d 684, 690 (Ind.
1987) ("We conclude that an intruding entity must be allowed to
seek relief under some circumstances. It must, however, bear the
burden to show that immunity is necessary to advance the
governmental ends it seeks."); City of Fargo v. Harwood Township,
256 N.W.2d 694, 698 (N.D. 1977); Temple Terrace, 322 So. 2d at
579.
84Piluso, 286 A.2d at 702.
85Id. at 703 ("[T]here is no precise formula or set of criteria
which will determine every case mechanically and
automatically.").
86Id.
87See City of Washington v. Warren County, 899 S.W.2d 863, 865-66
(Mo. 1995); Herrmann v. Bd. of County Comm'rs, 785 P.2d 1003,
1008 (Kan. 1990); In re County of Monroe, 530 N.E.2d 202, 203
(N.Y. 1988); Hayward v. Gaston, 542 A.2d 760, 766 (Del. 1988);
City of Crown Point v. Lake County, 510 N.E.2d 684, 690 (Ind.
1987); City of Ames v. Story County, 392 N.W.2d 145, 149 (Iowa
1986); Indep. Sch. Dist. No. 89 v. City of Oklahoma City, 722
P.2d 1212, 1215 (Okla. 1986); Brownfield v. State, 407 N.E.2d
1365, 1368 (Ohio 1980), overruled on other grounds by Racing
Guild of Ohio v. Ohio State Racing Comm'n, 503 N.E.2d 1025 (Ohio
1986); Blackstone Park Improvement Ass'n v. State Bd. of
Standards & Appeals, 448 A.2d 1233, 1239 (R.I. 1982); City of
Fargo v. Harwood Township, 256 N.W.2d 694, 698 (N.D. 1977);
Lincoln County v. Johnson, 257 N.W.2d 453, 458 (S.D. 1977);
Hillsborough Ass'n for Retarded Citizens, Inc. v. City of Temple
Terrace, 332 So. 2d 610, 612 (Fla. 1976), aff'g Temple Terrace,
322 So. 2d at 578-79; Town of Oronoco v. City of Rochester, 197
N.W.2d 426, 429 (Minn. 1972); Rutgers, the State University v.
Piluso, 286 A.2d 697, 701 (N.J. 1972); see also Dearden v. City
of Detroit, 296 N.W.2d 139, 142 & n.4 (Mich. 1978) (adopting
"legislative intent" test, citing Piluso favorably).
88Hagfeldt v. City of Bozeman, 757 P.2d 753, 757 (Mont. 1988);
Kunimoto v. Kawakami, 545 P.2d 684, 687 (Haw. 1976).
89City of New Orleans v. Bd. of Comm'rs, 640 So. 2d 237, 252 (La.
1994).
90Austin Indep. Sch. Dist. v. City of Sunset Valley, 502 S.W.2d
670, 674 (Tex. 1973).
91City of Everett v. Snohomish County, 772 P.2d 992, 997-98 (Wash.
1989).
92See Model Land Dev. Code 7_301 to 304 and 12_201 (1975).
93See Temple Terrace, 322 So. 2d at 579; see also Brownfield, 407
N.E. 2d at 1368; City of Fargo, 256 N.W.2d at 698; Young, supra
note 81, at 12.05.
94See Piluso, 286 A.2d at 703; see also City of Crown Point 510
N.E.2d at 690-91; Brownfield, 407 N.E.2d at 1368; Temple Terrace,
322 So. 2d at 579.
95Mount Juneau Enters., Inc. v. City & Borough of Juneau, 923 P.2d
768, 776-77 (Alaska 1996) (quoting Ben Lomond, Inc. v.
Municipality of Anchorage, 761 P.2d 119, 122 (Alaska 1988)).
96Cf. Ben Lomond, 761 P.2d at 122 ("[S]uccessful pursuit of a
claim through the administrative process could obviate the need
for judicial review of the constitutional issues."); Gregory W.
Stype, Comment, Government Immunity from Local Zoning
Restrictions: The Balancing Test of Brownfield v. State, 43 Ohio
St. L.J. 229, 241 (1982).
97Ogontz Area Neighbors Ass'n, 483 A.2d at 454-55.
98See Brown v. Kansas Forestry, Fish & Game Comm'n, 576 P.2d 230,
236 (Kan. App. 1978) ("[I]f the state were not required to seek
local approval, the city would always be forced to litigate its
disagreement . . . .") (quoting Temple Terrace, 322 So. 2d at 612
n.3); Stype, supra note 96, at 264.
99Town of Oronoco, 197 N.W.2d at 429.
100Our decision today is also consistent with an opinion letter of
the Alaska Attorney General, advocating for the adoption of the
balancing of interests test in 1981. See Rabbit Creek Shooting
Range Improvement, 1981 Informal Op. Att'y Gen. 867, 869; WL
38706, at *2 (Alaska, July 13, 1981).
10149 U.S.C. 701 et seq. ICCTA applies to the Railroad via 45
U.S.C. 1207(a)(1), which provides that " the [Alaska R]ailroad
shall be a rail carrier engaged in interstate and foreign
commerce subject to Part A of subtitle IV of Title 49 and all
other Acts applicable to rail carriers subject to that chapter."
102City of Auburn v. United States, 154 F.3d 1025, 1028 n.3 (9th
Cir. 1998) (quoting ICC Termination Act of 1995, Pub. L. No.
104_88, 109 Stat. 803 (1995)), cert. denied, 527 U.S. 1022
(1999).
10349 U.S.C. 10501 (emphasis added).
104Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Rice
v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
105Id. (quoting Retail Clerks Int'l Ass'n, Local 1625 v.
Schermerhorn, 375 U.S. 96, 103 (1963)).
106In re Vermont Ry., 769 A.2d 648, 503 (Vt. 2001).
107Florida East Coast Ry. Co. v. City of West Palm Beach, 266 F.3d
1324, 1337 (11th Cir. 2001).
108H.R. Rep 104-422, at 167 (1995), reprinted in 1995 U.S.C.C.A.N.
850, 852.
109H.R. Rep. 104-311, at 96 (1995), reprinted in 1995 U.S.C.C.A.N.
at 807-08.
110Cities of Auburn and Kent, WA, STB Finance Docket No. 33200, at
*6 (Surface Transp. Bd. July 1, 1997); 1997 WL 362017.
111Cf. City of Auburn, 154 F.3d at 1031 (noting that environmental
regulations "will in fact amount to `economic regulation' if the
[rail] carrier is prevented from constructing, acquiring,
operating, abandoning, or discontinuing a line").
112Florida East Coast Ry., 266 F.3d at 1331; see also Borough of
Riverdale, STB Finance Docket No. 33466, at *5, (Surface. Transp.
Bd. Sept. 9, 1999); 1999 WL 715272 ("[S]tate or local regulation
is permissible where it does not interfere with interstate rail
operations . . . .").
113Borough of Riverdale, 1999 WL 715272, at *7.
114Cities of Auburn and Kent, 1997 WL 362017, at *6.
115In re Vermont Ry., 769 A.2d at 502.
116Florida East Coast Ry., 266 F.3d at 1338 n.11.
117See 6 Rohan, Zoning and Land Use Controls 40.03[1][b] at 40-
122 (1993).
118Note that although this section is in Title 35, which mainly
relates to the Department of Transportation and Public
Facilities, its application extends beyond the department to all
state entities.
119Ch. 63, 1, SLA 1974.
120Ch. 50, 1, SLA 1976.
121Senator Chancy Croft, sponsor of the measure, explained the
purpose of the amendment as follows to the Community and Regional
Affairs Committee of the Senate:
Mr. Chairman, you will recall that last
year we passed a bill that contained all this
except for the reference to the University of
Alaska. None of us I think being sensitive
enough that the University considers itself
something other than a portion of the state
as far as public works are concerned. The
bill as far as I know was satisfactory to
everybody with the exception that the
University told people that they just weren't
going to abide by it. I think they should
and if I frankly had had any knowledge that
they wouldn't, we would have included it last
year and this bill simply adds the University
to the bill that was passed last year that
requires state instrumentalities to comply
with local planning and zoning ordinances
unless the governor determines that there is
a sufficient reason to override it in which
he case he can do it but otherwise they have
to abide by the same laws as everybody else.
Track 1, 16:00-19:20 - 1976 Senate Committee: Community &
Regional Affairs.
When the legislation was being considered by the House
of Representatives, Senator Croft explained the evolution of the
requirement of state government compliance with local codes as
follows:
This, I might say Mr. Chairman, this
whole area has been one in which the state
has gone on a gradual basis to it. The first
portion of the bill of the present statute
that the state would consult was passed in 57
and then it was 68 before the state said that
it would comply with local building codes.
And then in 75 we went and we thought we were
picking up the University but there was a
drafting mistake and we weren't, that they
shall comply with local planning and zoning,
and so it has been a real evolutionary
process . . . .
Track 2, 0:27-4:00 - 1976 House Committee: Community & Regional
Affairs.
122AS 42.40.010 - .990.
123Ch. 14, 57, SLA 1987.
124House Journal Supp. No. 11 at 8, 1987 House Journal 1617.
125Id. at 2.
126There are a number of particularized statutes that also indicate
the legislature's acceptance of the rule that state agencies and
state activities should be immune from local zoning unless made
subject to zoning by statute. Thus AS 18.55.100(7) makes the
Alaska Housing Finance Corporation subject to local zoning. If
the corporation were already subject to local zoning this act
would not have been needed. Similarly, AS 19.30.080 provides
that access roads to state land constructed within a municipality
that has zoning shall conform with zoning regulations as to width
of right-of-way - but, by implication, not with other standards.
Likewise, AS 38.04.045 requires that the Department of Natural
Resources when subdividing state land for sale within a
municipality comply with local zoning.
127See Senate Transportation Committee Hearing, tape 65, side A,
March 1, 1984.
128Today's opinion offers a third interpretation of section .390.
It states that the section "could also be read as a choice-of-law
provision . . . ." Slip Op. at 11. Thus, "if the Railroad Board
promulgated rules conflicting with local ordinances, the
Railroad's regulations would govern, but in the absence of a
conflict, local rules are unaffected." Under this interpretation
the Railroad Board may promulgate a land-use rule covering the
land in question, permitting it to be used for quarry purposes.
Since such a rule would conflict with the municipal zoning code,
the rule would govern. Thus even under the court's
interpretation, section .390 is a "direct statutory grant[] of
immunity," Slip Op. at 27-30, albeit a conditional one, that
controls over the balancing test adopted by today's opinion when
the Railroad Board promulgates rules inconsistent with local
zoning.
129Minutes of Committee Meeting of March 15, 1984.
130AS 42.40.935(b) provides:
No later than two years after the date
of transfer, the corporation in consultation
with the Department of Public Safety and
appropriate municipal officials, shall
develop and adopt a plan to achieve
compliance with building and related safety
codes applicable to facilities of the
corporation. The plan shall be implemented
and compliance achieved within five years
after it is adopted. In the sole
determination of the commissioner of public
safety, any existing building owned or
controlled by the corporation that does not
present a serious safety hazard and for which
compliance would be uneconomical in
consideration of its remaining useful life
shall be exempted from compliance with state
or municipal safety codes.
131See supra p. 40.
132AS 42.40.250 provides in relevant part:
In addition to the exercise of other
powers authorized by law, the corporation may
. . .
(9) contract with and accept transfers,
gifts, grants, or loans of funds or property
from the United States and the state or its
political subdivisions, subject to other
provisions of federal or state law or
municipal ordinances;
. . .
133April 12, 1982 Memorandum from Senator Kerttula to the Senate
Transportation Committee outlining the amendments to SB 212
requested by Frank Jones, the manager of the Alaska Railroad.
