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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pruitt v. City of Seward (01/26/2007) sp-6096

Pruitt v. City of Seward (01/26/2007) sp-6096, 152 P3d 1130

     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


JAMES T. PRUITT d/b/a SEWARD )
SHIPS ACE HARDWARE AND ) Supreme Court No. S- 11628
MARINE, )
) Superior Court No. 3AN-03-13457 CIV.
Appellant, )
) O P I N I O N
v. )
) No. 6096 - January 26, 2007
CITY OF SEWARD, an Alaskan )
municipal corporation, )
)
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Morgan Christen, Judge.

          Appearances:   Ronald  L.  Baird,  Office  of
          Ronald  L.  Baird, Anchorage, for  Appellant.
          Cheryl   A.   Brooking,  Wohlforth,   Vassar,
          Johnson & Brecht, Anchorage, for Appellee.

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

          EASTAUGH, Justice.
          CARPENETI, Justice, dissenting.

I.   INTRODUCTION
          James Pruitt applied to the City of Seward for a permit
to  erect  a new building in the citys industrial zone.   Pruitts
building  plan  included  a  canopy  over  the  buildings   front
entrance.   The  city refused to grant permission  to  build  the
canopy,  claiming that the canopy was an attachment to a building
that  would extend into the building setback mandated by  Sewards
zoning  code.  Pruitt did not appeal.  After Pruitt  erected  his
building,  including the canopy, the city filed a superior  court
enforcement  action and argued that Pruitt could  not  defend  in
that  action  because  he  had not exhausted  his  administrative
remedies.   The superior court used its independent  judgment  to
interpret  the  citys  zoning codes,  held  that  Pruitt  was  in
violation  of  the zoning codes, and ordered him  to  remove  the
canopy.  We hold that, because the city did not provide him  with
notice  that  its interpretation of the city zoning  code  was  a
final  action, the exhaustion doctrine does not foreclose  Pruitt
from  defending the citys enforcement action.  We also hold that,
because  the  city  effectively denied Pruitt an  opportunity  to
appeal  its  zoning  decision  and because  the  zoning  code  is
ambiguous,   the  superior  court  should  have  given   him   an
opportunity to submit the issue of the codes meaning to the citys
planning   and  zoning  commission.  We  therefore  remand   with
instructions to hold the enforcement action in abeyance so Pruitt
can appeal the citys interpretation of the zoning code.
 II. FACTS AND PROCEEDINGS
     A.   Facts
          James  Pruitt  applied  to the City  of  Seward  for  a
building permit in August 2000.  Pruitt proposed erecting a  pre-
fabricated  building in Sewards industrial  zone.   The  building
plan  included a canopy over the front entrance of the  building.
The  Seward City Codes (SCC) zoning provisions require  that  all
structures  in industrial zones be set back at least twenty  feet
from  the  street.1  Seward City Code  15.10.140 defines  setback
as:
          The  required minimum distance from right-of-
          way  or  lot line that establishes  the  area
          within   which   only  fencing,  landscaping,
          driveways,  parking  and  similar  uses   are
          permitted.  Any structure including, but  not
          limited  to,  decks,  stairways,  porches  or
          other   attachments   to   a   building   are
          specifically   prohibited  in  the   setback.
          Building  eaves are permitted to extend  into
          the setback a maximum of two feet.
          
Seward City Code  15.10.140 defines structure as:
          Anything constructed or erected on the ground
          or  attached to something having location  on
          the  ground,  including, but not limited  to,
          buildings,   towers,  and   sheds.    Fences,
          retaining  walls  less  than  three  feet  in
          height, signs, and similar improvements of  a
          minor character are excluded.
          
          Linda-Rae Olsen, the city clerk, sent Pruitt  a  letter
on  August  18, 2000.  It cited SCC  15.10.140, and  stated  that
from  the  building plans it appeared that the roof  [eave],  the
[fascia]  panel,  and  the canopy over the store  entrance  would
extend into the setback.  The letter indicated that Pruitts  site
plan could not be approved unless he verified that:
          1.    The building [eaves] do not extend over
          two   feet  into  the  20  foot  front   yard
          setback[;]
          
          2.    the  store front canopy does not extend
          into the 20 foot front yard setback and;
          
          3.    the [fascia] panel does not extend into
          the  20 foot front yard or 10 foot side  yard
          setbacks.
          
At Pruitts request, Olsen later faxed him information on applying
for a variance from the zoning code.
          Pruitts building permit was issued in October 2000.  It
contained  the following statement in bold print: The  Canopy  is
not part of this permit [and] has not been approved.
          The   city   engineer   conducted  inspections   during
construction  and  verbally notified Pruitt  and  his  contractor
during  those  inspections  that the  canopy  extended  into  the
setback.   Dave  Calvert, the citys building official,  performed
the  final inspection.  He told Pruitt that the canopy was in the
setback  and  that he would not issue a certificate of  occupancy
until that problem was corrected.
           Rachel  James,  Sewards city planner,  sent  Pruitt  a
letter  in  March  2001  notifying him that  his  canopy  was  in
violation  of  City Code  15.10.140 pertaining to setbacks.   The
letter  instructed Pruitt to remove the canopy from his  building
or  provide  an as-built survey showing that the canopy  was  not
located  in  the  setback.  James also informed Pruitt  that  the
planning and zoning commission (commission) had put the topic  of
setbacks on its March 6, 2001 agenda.
          Pruitt  then  filed  a variance application  requesting
authorization  to  allow  a one to three  foot  doorway  overhang
(canopy)  into  the  twenty foot front  yard  setback.  A  public
hearing  on the variance application was held in April  2001  and
the  commission  denied the application.  Pruitt did  not  appeal
this denial.
          Calvert  sent Pruitt a letter in October 2001 notifying
Pruitt  that it was a violation of the Uniform Building  Code  to
use  or  occupy the building without a certificate of  occupancy.
Calvert again emphasized that he would not issue a certificate of
occupancy  until  the  building complied with  the  citys  zoning
requirements.  The letter also stated: As always, you can  appeal
this decision to the City Council if you so desire.
          Pruitt  occupied the property and opened  the  building
for  business without a certificate of occupancy.  In March  2002
Pruitt  talked to Calvert about building a loading  dock  on  the
back  of  his  store and applied for a building permit.   Calvert
told  Pruitt that he would not issue any additional permits until
Pruitt  had  corrected the canopy setback problem and obtained  a
certificate of occupancy for the building.
          As  James  had suggested in March 2001, Pruitt obtained
an  as-built  survey in September 2002 showing  that  his  canopy
extended  into  the  setback by two feet.  Pruitt  then  built  a
covered  loading dock without a permit.  Calvert  sent  Pruitt  a
letter  in  May  2003 stating that by building the loading  dock,
Pruitt violated the building code because he did not submit plans
for  review or submit to inspections during the building process.
Calvert  reminded Pruitt that the canopy was still in the setback
and  that Pruitt did not have a certificate of occupancy for  the
building.  Calvert also notified Pruitt that he could be fined up
to $1,000 per day for the violations.
          In  a  July 2003 letter Calvert threatened legal action
and  warned Pruitt that steps would be taken to fine  him  up  to
$1,000  per  day  if  he did not correct his  violations  of  the
building  code.  Calvert instructed Pruitt to reduce  his  canopy
width  and  to  obtain  a building permit,  a  plan  review,  and
inspections  for the loading dock.  Calvert advised  Pruitt  that
the  city  would  close  the threatened legal  action  if  Pruitt
complied.
          During  fall 2003 the commission addressed the  setback
requirement  in  the  industrial  zone  at  multiple   commission
meetings.   In December 2003 the commission recommended  reducing
industrial setbacks to ten feet.  Nothing in the record indicates
whether  the  city council adopted the commissions recommendation
and changed the city code.
     B.   Proceedings Below
          The  City  of Seward filed a superior court enforcement
action  against  Pruitt in November 2003.   The  citys  complaint
alleged  that  Pruitt: (1) violated SCC  12.05.010 by  using  and
occupying  the  building without a certificate of occupancy;  (2)
intentionally  violated  the building code  by  constructing  the
canopy  in  violation of the building permit;  (3)  violated  the
citys zoning code by constructing a canopy that extended into the
required twenty foot setback; and (4) intentionally violated  the
building  code by constructing a loading dock without  a  permit.
The city asked the court to impose a fine of $1,000 per violation
per  day plus punitive damages, to require removal of the loading
dock,  and  to  enjoin Pruitt from using the building  without  a
certificate of occupancy.
          Pruitt   counterclaimed,  asserting  that   the   citys
treatment of the canopy as a violation of SCC  15.10.140 violated
his federal and state rights to due process and equal protection.
Pruitt  requested either an injunction prohibiting the city  from
classifying  canopies  such  as  Pruitts  as  violations  of  SCC
15.10.140  or  a  decree  declaring that section  .140  does  not
prohibit the canopy on Pruitts building or, if it does, that said
ordinance  is  unconstitutional and may not be  enforced  against
Pruitt.
          The  parties cross-moved for summary judgment  and  the
superior court heard oral argument.  The city claimed that Pruitt
had  waived  his  right to raise any objections or  to  make  any
claims   against  the  city  because  he  did  not  exhaust   his
administrative remedies under the zoning and building codes.  The
city noted that Pruitt had not appealed the commissions denial of
his  variance  application.  It also alleged that  Pruitt  should
have  administratively appealed the citys interpretation  of  SCC
15.10.140 per SCC  15.10.410.2
          The   superior  court  held  that  resolution  of   the
exhaustion issue was not necessary because:
          Even if no deference is given to the Building
          Inspectors  decision, the court  reaches  the
          conclusion    that   the   canopy    is    an
          impermissible encroachment because the  plain
          language   of   SCC  15.10.140  prevents   an
          attachment to a structure to extend into  the
          setback  as far as the subject canopy.   See:
          SCC 15.10.140.  There is no question that the
          canopy is an attachment to a structure.
          
The  superior  court  refused to allow Pruitt  to  challenge  the
causes  of action arising out of the citys building code  because
it  found that Pruitt was aware of the right to appeal violations
of  the  building code and had failed to do so.  The  court  also
held  that  Pruitts constitutional arguments were without  merit.
As  a  sanction,  the  court gave Pruitt  the  option  of  either
bringing  his  building  into  compliance  with  the  zoning  and
building  codes within sixty days or paying a fine of $10.00  per
violation  per  day for the approximately four  years  since  the
initial  violation.   The  court  also  declared  the  city   the
prevailing party and awarded it attorneys fees.
          Pruitt appeals.
III. DISCUSSION
     A.    Pruitt  Is  Not Barred from Raising a Defense  to  the
Enforcement         Action.

          The  city argues that Pruitt cannot raise any objection
or defense to its enforcement action because he failed to exhaust
his  administrative remedies.  It claims that Pruitt was required
to  appeal the citys interpretation of the zoning code under  the
procedure  set  out  in SCC  15.10.410.  That  section  allows  a
person  aggrieved  by any action or determination  under  chapter
15.10 of the city code to appeal that action or determination  to
the  citys  planning and zoning commission within ten  days.   It
also specifies that any action not appealed within the prescribed
time limit is final.3
          The  city  also argues that Pruitt should have appealed
the  citys  building  code decisions through  the  administrative
appeal process set out in SCC  12.05.045. That section allows  an
appeal  to  the  city  council  by any  person  aggrieved  by  an
administrative  officers interpretation and  enforcement  of  the
codes of technical regulation adopted under chapter 12.05 of  the
city  code.   Pruitts  failure  to  appeal  the  citys  decisions
regarding  the  building code, however,  does  not  help  analyze
whether   Pruitt  had  an obligation to appeal  the  zoning  code
ruling.   Because we believe the case turns on Pruitts obligation
to  appeal the zoning code ruling, the citys argument that Pruitt
failed  to  exhaust  under SCC  12.05.045 is irrelevant.   As  we
explain below, the citys zoning code determination underlies  all
of  its  building code determinations.  Thus, it does not  matter
whether  Pruitt  should have appealed the  building  code  ruling
under SCC  12.05.045.
          The  city  also argues that Pruitt should have appealed
the   planning  and  zoning  commissions  decision  denying   the
variance.   But as we explain below in Part III.C, it would  have
been  inconsistent for Pruitt, while seeking a variance, to argue
that  his  canopy did not in fact violate the zoning  code.   The
variance  process gave Pruitt an opportunity to  argue  that  the
city should make an exception to its conclusion that a canopy  is
an attachment to a building under SCC  15.10.140; it did not give
him an opportunity to argue that the city was misinterpreting its
zoning  code.  We therefore conclude that Pruitt did not need  to
appeal the variance denial to exhaust his administrative remedies
regarding the citys interpretation of the zoning code.
          We  review de novo the legal question whether  a  party
exhausted  its  available administrative remedies.4   Pruitt  had
standing  to  appeal  to the planning and zoning  commission  the
citys  determination  that his canopy  was  an  attachment  to  a
building  within  the  meaning of SCC   15.10.140,  because  that
determination  prevented  Pruitt from lawfully  constructing  the
building  as he had proposed.5  The city has not alleged  exactly
which  determination  Pruitt should have  appealed  or  when  its
interpretation  of SCC  15.10.140 became final.  We  assume  that
the  city  contends  that  Pruitt should  have  appealed  to  the
          commission after he received Olsens letter informing him that his
canopy was an attachment to a building that could not extend into
the setback.  There is no dispute that Pruitt did not appeal from
that letter or any later letter arguably deciding that the canopy
violated the zoning code.
          Pruitt  argues that compliance with the citys appellate
procedure  should  be excused where the appellant  doesnt  get  a
notice  indicating  a final decision has been  made  and  that  a
stated  appeal  time has begun to run.  He refers by  analogy  to
Appellate Rule 602(a)(2), which states that the appellate  period
does not begin to run until the agency has issued a decision that
clearly  states that it is a final decision and that the claimant
has  thirty  days to appeal.  Pruitt contends that the  time  for
appealing the citys interpretation of SCC  15.10.140 has not  yet
begun  to  run because the city never told him that its  decision
was  final,  nor did it instruct him that he could  appeal  under
SCC  15.10.410.
          We  have interpreted Appellate Rule 602(a)(2) strictly,
requiring  that to begin the running of the thirty-day  appellate
period, the agencys decision must explicitly state that it  is  a
final  decision.6  Although Appellate Rule 602  does  not  govern
internal administrative agency appeals of the sort present  here,
it  is  analogous.   The doctrine of fairness  requires  that  an
individual  must be notified that the agencys decision  is  final
and  appealable, if the doctrine of exhaustion is to bar a  claim
in a later proceeding.7
          Moreover, if the recipient is not told explicitly  that
a  determination  is  final,  it can be  difficult  to  determine
whether   an  informal  agency  action  is  final  and  therefore
appealable.8  Informal agency decisions, such as those  announced
in  letters,  interpretive  rules, and policy  statements,  often
cannot  be  characterized as final actions because  the  decision
either  does  not come from someone with ultimate decision-making
authority  or  because  the  decision  is  hedged  with  language
suggesting   that   the  position  taken  is   tentative.9    One
commentator  has  noted  that when an  agencys  determination  is
expressed informally, courts will determine the finality  of  the
informal expression based on what is most equitable in that case.10
Courts will often allow appeals filed after the expiration of the
appellate period if the party receiving the informal advice  does
not realize that such advice was meant to be determinative.11  We
agree  that a party should not be barred from raising an argument
in  a  later proceeding for failure to exhaust its administrative
remedies  if  it is unclear whether the agencys informal  opinion
was a final and appealable action.
            As noted above, we assume that the city contends that
Pruitt  should have appealed to the commission after he  received
Olsens letter informing him that his canopy was an attachment  to
a building that could not extend into the setback.  Olsens letter
stated: This office has reviewed your plans for a new building  .
.  .  it also appears on the building plans that the . . . canopy
over the store entrance will extend into the setback.  The letter
then  quoted SCC  15.10.140, stated that other attachments  to  a
building   are  specifically  prohibited  in  the  setback,   and
          instructed Pruitt to verify that his canopy would not extend into
the setback.  (Emphasis in original.)  The letter did not specify
what  this  office  refers to but is written on  City  of  Seward
letterhead.  The letter was signed:
          Sincerely,
          
          The City of Seward
          
          Linda-Rae Olsen
          City Clerk

          Olsens  letter  did not inform Pruitt  that  the  citys
interpretation  of  the  zoning code was  final  and  appealable.
Moreover, the citys zoning code does not specify which office  or
administrator bears ultimate responsibility for interpreting  the
code.12   Pruitt  therefore  had  no  way  to  know  whether  the
interpretation  expressed in Olsens letter was  the  citys  final
decision or whether he could attempt to persuade a superior  that
the letters interpretation of the code was erroneous.
          There  is  also evidence in the record suggesting  that
the  commission  was in the process of changing the  zoning  code
during  Pruitts canopy dispute.  Jamess letter to Pruitt  stated:
At  your  request,  we  have put the topic  of  setbacks  on  the
Planning  and Zoning Commission agenda for their regular  meeting
on March 6, 2001.  In an affidavit, Pruitt said that he discussed
the canopy situation with then-City Manager Scott Janke, who told
Pruitt that he hoped the setback requirement in industrial  zones
would  be  reduced.  Pruitts canopy would have complied with  the
citys  zoning  code had the setback requirement been  reduced  by
only  two  feet.   In a later affidavit, Pruitt  stated  that  he
learned  that the commission had discussed altering  the  setback
requirements at meetings in late 2003.13  This proposed change in
the  zoning  code further indicates that the citys interpretation
of the zoning code was not final.  Thus, because the city did not
indicate  in the Olsen letter that it was making a final decision
and because the city suggested to Pruitt that it might change the
zoning  code  in  a way favorable to him, the city  did  not  put
Pruitt  on  notice that, by not appealing the citys determination
that  his  canopy was a structure under SCC  15.10.140, he  would
later  be precluded from defending an enforcement action  if  the
city brought one.
           Appellate  Rule  602(a)(2) also requires  agencies  to
inform  parties  of their right to appeal to the  superior  court
within  thirty days.  Neither the citys letters notifying  Pruitt
that  his canopy violated SCC  15.10.140 nor the building  permit
prohibiting the canopy advised Pruitt that he could appeal  those
decisions.  The city also did not inform Pruitt of the  appellate
process outlined in SCC  15.10.410.
          The  city  first  referred to  SCC   15.10.410  in  its
summary judgment motion in the superior court enforcement action.
The  only  city  communication to Pruitt mentioning  a  right  to
appeal  was the letter from Dave Calvert that stated: As  always,
you  can  appeal  this decision to the City  Council  if  you  so
desire.   But  the  subject  of  Calverts  letter  was  not   SCC
15.10.140; instead, Calverts letter informed Pruitt that  he  was
          in violation of the building code, not the zoning code.  It is
the  zoning  code that contains the setback requirement.14   Thus
Pruitt  was  not  informed  of his  right  to  appeal  the  citys
interpretation of the zoning code before the city  commenced  the
enforcement action.
          The  city  argues that Ben Lomond, Inc. v. Municipality
of  Anchorage15  forbids  Pruitt from defending  the  enforcement
action   because   Pruitt  did  not  exhaust  his  administrative
remedies.   In  that  case, a municipal zoning  official  revoked
building permits previously issued to Ben Lomond for construction
of an apartment complex.16  The zoning official then explained to
Ben  Lomond that it had the right to administratively appeal  the
denial of its building plan.17  Ben Lomond chose not to appeal but
later brought a separate superior court action for deprivation of
property  without  due process.18  We held that  Ben  Lomond  was
barred  from bringing its claim because it had failed to  exhaust
its  administrative  remedies when it chose  not  to  appeal  the
zoning officials decision.19
          Ben  Lomond is distinguishable in two significant ways.
First,  the municipal zoning official, after denying the proposed
site  plan,  explained to Ben Lomond that the decision  could  be
appealed.20  Here there is no suggestion that the city ever  told
Pruitt,  even informally, of the applicable appellate process  or
that  it  notified  him  that a final  decision  had  been  made.
Second,  Ben  Lomond initiated an independent action in  superior
court  alleging  that  the  municipal officials  zoning  decision
violated its constitutional rights.21  Here, the city brought the
enforcement  action; Pruitt is merely attempting to  defend  that
action.
          Because  the  city  did  not  inform  Pruitt  that  its
decision  was final, the exhaustion doctrine does not bar  Pruitt
from defending against the citys enforcement action.
     B.   Pruitt  Is  Not Collaterally Estopped from  Challenging
          the Citys Interpretation of SCC  15.10.140.
          
          The  planning and zoning commissions denial of  Pruitts
variance application ruled that canopies or marques which  extend
out  from  a  building are attachments to a building and  clearly
prohibited in the setback.  The city contends that because Pruitt
did  not  appeal  the denial of his variance application,  he  is
foreclosed from arguing that a canopy is not an attachment  under
SCC 15.10.140.
          The doctrine of collateral estoppel or issue preclusion
prevents a party from raising a previously adjudicated issue in a
later proceeding.22  Four requirements must be met for collateral
estoppel to apply: (1) the party against whom issue preclusion is
sought  was  a  party in the previous action; (2)  the  identical
issue  was previously decided; (3) a final judgment on the merits
was  issued; and (4) the judgment depended on resolution  of  the
issue in question.23
          We review de novo the legal question whether collateral
estoppel applies.24
          The  commissions denial of Pruitts variance application
does  not  meet the requirements for collateral estoppel  because
          the denial was not dependent on the commissions finding that a
canopy was an attachment under SCC  15.10.140.  Seward City  Code
15.10.325(d)  requires  satisfaction of seven  conditions  for  a
variance.  The commission found that Pruitt met only two  of  the
conditions.  At least one condition that Pruitt failed to satisfy
was  unrelated to whether Pruitts canopy was an attachment  under
SCC   15.10.140.   The  commission is required  to  find  that  a
requested  variance is the minimum variance necessary  to  permit
the  reasonable use of the land or structure.25  Because  Pruitts
property  was  also being used for boat storage,  the  commission
found  there  was  reasonable use of his property  that  did  not
require  a  variance.  The commission could have  denied  Pruitts
variance application solely because this condition was not met.26
We  therefore cannot  say that the commissions denial of  Pruitts
variance application depended on its finding that a canopy is  an
attachment  to  a building under SCC  15.10.140,  and  Pruitt  is
therefore not collaterally estopped from arguing that a canopy is
not an attachment to a building.
     C.   It  Is  Necessary To Give Pruitt Opportunity To  Obtain
          the Commissions Interpretation of SCC  15.10.140.
          
          We  ordinarily  give great weight to  a  zoning  boards
interpretation   of   its  own  zoning  code   and   accept   its
interpretation when the board supplies a reasonable basis for it.27
This  deference  is  based  on  a  zoning  boards  expertise   in
administering zoning ordinances.28  When presented with a question
of  law  that  does  not  invoke  agency  expertise,  however,  a
reviewing court will substitute its judgment for that of a zoning
board.29
          Pruitt  argues  that  the citys interpretation  of  SCC
15.10.140 in the enforcement proceeding is not supported  by  the
text  of  the ordinance.  Seward City Code  15.10.140  states  in
part:
          Setback.  The required minimum distance  from
          right-of-way or lot line that establishes the
          area  within which only fencing, landscaping,
          driveways,  parking  and  similar  uses   are
          permitted.  Any structure including, but  not
          limited to decks, stairways, porches or other
          attachments  to  a building are  specifically
          prohibited  in  the setback.  Building  eaves
          are  permitted to extend into the  setback  a
          maximum of two feet.
          
          . . . .
          
          Structure.   Anything constructed or  erected
          on the ground or attached to something having
          location  on the ground, including,  but  not
          limited  to,  buildings, towers,  and  sheds.
          Fences,  restraining walls  less  than  three
          feet    in   height,   signs,   and   similar
          improvements   of  a  minor   character   are
          excluded.
          
Pruitt  argues  that  a  canopy is neither  a  structure  nor  an
attachment.   The  city  contends that we  should  defer  to  the
interpretation  the  planning  and  zoning  commission  gave  SCC
15.10.140 in denying Pruitt a variance.
          When it denied Pruitts variance request, the commission
reasoned  that  canopies  or marques  which  extend  out  from  a
building are attachments to a building and clearly prohibited  in
the setback.  But Pruitt did not have the opportunity to argue to
the  commission that a canopy is not an attachment to a  building
before  the commission entered this ruling.  It would  have  been
inconsistent for him, in context of seeking a variance,  to argue
that his canopy did not in fact violate the zoning code.30  Also,
the  key issue in the enforcement case is whether Pruitts  canopy
violated  the zoning code; the commission did not have to  decide
this  issue  in  order  to  deny Pruitts variance  application.31
Because  the  commission did not have to resolve Pruitts  present
claim  that  the  citys interpretation of  the  zoning  code  was
erroneous,  and because the commissions ruling was not  necessary
          to decide the variance application, the commissions ruling on the
variance  application  is  not  entitled  to  deference  in   the
enforcement proceeding.32
          The  superior  court used its independent  judgment  to
determine  that  [t]here is no question that  the  canopy  is  an
attachment  to  a structure.  The court held that Pruitts  canopy
violated the plain language of  SCC  15.10.140.  But whether  the
canopy violated the setback ordinance is not clear.  Section .140
is  not  so  clear that we can say, as a matter of  law,  that  a
canopy  is  an attachment to a building.  Moreover, according  to
Pruitt, the canopy only intruded into the twenty-foot setback  by
about twenty-four inches.  The ordinance allows building eaves to
protrude  into  a setback up to two feet.33  It appears  possible
that  the canopy is sufficiently similar in form and function  to
building eaves that the canopy should be considered to be  within
the eaves exception.34  According to the ordinance, the purpose of
setbacks is to ensure sufficient open area for snow accumulation,
sunlight,  views,  privacy,  fire separation  and  visual  relief
between  structures.35  Pruitt argues that none of these purposes
is compromised by his canopy, protruding as it does only two feet
into a twenty-foot setback.  He notes that [o]n any building  and
certainly ones of one-story, an eave has the same impact  on  the
underlying land as the canopy at issue here.  Pruitt also  argues
that his canopy is a minor improvement, more like a sign than the
ground-based  decks,  stairways or porches mentioned  in  section
.140.  In summary, he argues that, in view of the purposes of the
setback  requirement  and  the  nature  of  both  permitted   and
prohibited  improvements  therein,  it  would  be  irrational  to
prohibit  canopies  that  extend two  feet  into  the  setback.36
Because  it  is unclear whether the canopy violated  the  setback
ordinance, we are unable to affirm the superior courts conclusion
that  it  did.   Given  the  citys  reliance  on  the  exhaustion
doctrine,  and  its failure to tell Pruitt it had made  a  final,
appealable decision interpreting section .140,  the court, rather
than  substitute its judgment for that of the commission,  should
have  given  Pruitt  an  opportunity to  obtain  the  commissions
interpretation.37  Whether the ordinances permit the canopy should
be  decided  in  the  first instance by the commission.   In  any
subsequent  judicial review of the commissions decision  on  this
issue,  a  deferential standard of review should be employed  and
the  decision  will  be  subject  to  reversal  only  if  it   is
unreasonable.38
          It  does  not  appear that the commission  has  had  an
opportunity to interpret SCC  15.10.140 as applied to  Pruitt  in
light  of  the parties present arguments.  The superior court  on
remand  should  therefore enter an order holding the  enforcement
action  in  abeyance until Pruitt has an opportunity to  ask  the
commission  to  interpret  SCC  15.10.140.   The  superior  court
should  instruct Pruitt that he has ten days from entry  of  that
order  in  which to file with the commission an appeal under  SCC
15.10.410 from the citys interpretation of section .140.   If  he
fails  to comply with the citys appellate procedure, the abeyance
order  should  be vacated, and the city may argue the  exhaustion
issue.   Otherwise,  the enforcement action  should  be  held  in
          abeyance until Pruitt exhausts his administrative remedies or he
abandons  the  administrative appeals.   This  remedy  will  give
Pruitt  an  opportunity to obtain the ruling from the  commission
that  he could have sought with a timely appeal had he been  told
that the city had reached a final, appealable decision.  If there
is  an  administrative appeal to the superior court from a  final
agency  determination, the superior court assigned to that appeal
can consider whether to consolidate the two cases.
     D.    The  Citys  Four Causes of Action Against  Pruitt  all
Relate to the       Citys Interpretation of the Zoning Code.

          The  citys  enforcement  action pleaded  four  separate
causes  of  action against Pruitt: (1) he violated  the  building
code by using and occupying his building without a certificate of
occupancy; (2) he violated the building code by not conforming to
the  permit that required the building be constructed without the
canopy or in a manner so that the canopy did not extend into  the
setback;  (3)  his canopy extended into the twenty- foot  setback
required  in  the  citys zoning code; and  (4)  he  violated  the
building code by constructing the loading dock without a  permit.
The superior court found Pruitt liable on all four counts.
          All   four  causes  of  action  depend  on  the   citys
interpretation  of  the zoning code.  Most obviously,  the  claim
that  Pruitts canopy violated the zoning code stems directly from
the  citys  interpretation that a canopy is an  attachment  to  a
building    within  the  meaning  of  SCC   15.10.140.   Calverts
affidavit  stated that the building permit did not authorize  the
canopy  because  city officials noted that it would  violate  the
zoning  code.   The canopys intrusion into the setback  was  also
Calverts reason for denying a certificate of occupancy   for  the
building  and a building permit for the loading dock.   All  four
causes of action therefore originate in the citys conclusion that
the canopy violated the zoning ordinance.  Because Pruitt must be
given  the  opportunity  to appeal the  citys  interpretation  of
structure to the commission, the superior courts grant of summary
judgment must be vacated as to all four counts.39
IV.  CONCLUSION
          For  the  reasons discussed above, the superior  courts
judgment is VACATED.  We REMAND with instructions that the  citys
enforcement  action  be held in abeyance  until  Pruitt  has  the
opportunity to appeal the citys interpretation of SCC  15.10.140.
We  therefore  also VACATE the citys prevailing  party  award  of
attorneys fees.
CARPENETI, J., dissenting.
          James Pruitt wanted to build a commercial building that
the  City  of Seward believed violated its zoning code.   Through
its  employees, the city told Pruitt no less than seven times  in
writing1  and additional times orally2 that a proposed canopy  on
the  building  extended  illegally into  the  area  reserved  for
setbacks  under  the city zoning laws.  Pruitt  nonetheless  went
ahead and built the building with the canopy.3
          After the building was built, the city refused to issue
the  certificate of occupancy needed under the law to occupy  the
building.4   Pruitt  nonetheless  went  ahead  and  occupied  the
building.5
          Pruitt  then decided that the building needed a loading
dock.  He was told by the city that the necessary building permit
would not be issued until Pruitt corrected the canopy problem and
obtained  a  certificate of occupancy.6  Pruitt nonetheless  went
ahead  and  constructed the loading dock without  correcting  the
canopy,7  without  obtaining  a certificate  of  occupancy,8  and
without  even  applying  for (much less obtaining)  the  required
permits for construction of the loading dock.9
          Over  three years after Pruitt initially applied for  a
building permit, and after two additional warning letters,10  the
city  brought  an enforcement action against Pruitt.11   Superior
Court  Judge  Morgan Christen ruled in the citys  favor,  holding
that  [t]o  the  extent  Mr. Pruitt raises  challenges  regarding
violation of the building code, those challenges are not properly
raised in superior court because Mr. Pruitt failed to exhaust his
administrative remedies. But this court, holding  that  the  city
effectively  denied Pruitt an opportunity to  appeal  its  zoning
decision and that the superior court should have given Pruitt the
opportunity  to  submit the issue of the  codes  meaning  to  the
planning and zoning commission, today vacates the superior courts
decision and remands the case to allow Pruitt to appeal.
          Because  the city specifically and in writing  notified
Pruitt  of his right to appeal,12 because Pruitt had constructive
notice  of  his  right to appeal,13 and because Pruitt  has  done
nothing during the course of this case to make any claim that  it
is inequitable to enforce the citys laws, I respectfully dissent.
          The  linchpin of the courts opinion is its holding that
the  city effectively denied Pruitt an opportunity to appeal  its
zoning  decision.  This conclusion rests on  the  courts  careful
distinction between whether Pruitt should have appealed the citys
building  code  rulings or  whether he should have  appealed  the
citys  zoning  code rulings, and its conclusion  that  the  citys
zoning  code  determination underlies all of  its  building  code
determinations.  Focusing only on the citys zoning code decisions
(and  thereby  ignoring every other communication from  the  city
that  unmistakably told Pruitt that his canopy was illegal),  the
court  concludes  that Pruitt had no way  to  know  that  he  had
received a final decision from the city on the building code.
          It  is difficult to give credit to this conclusion.  As
the factual history above makes clear, the city had unequivocally
notified  Pruitt on multiple occasions that his proposal violated
the  applicable  codes.14  His response   after  an  unsuccessful
          attempt to obtain a variance, from which he took no appeal  was
to  ignore  the city and build his building and to occupy  it  in
violation of the codes.15  It is illogical to assume that  Pruitt
might  have entertained any doubt at all that the city had  given
its  final decision.  Moreover, by his action alone he mooted for
all  practical  purposes any claim that he should be  allowed  to
pursue an appeal.
          Why  the  citys  notice of Pruitts  appeal  rights  was
sufficient
          On  October 24, 2001, Dave Calvert, the manager of  the
Engineering & Utilities department of the City of Seward, sent  a
letter  to Pruitt to summarize past actions and provide  [Pruitt]
with   the  requirements  for  occupancy  and  use  of  [Pruitts]
building. The letter carefully recounted the history of the citys
attempt  to obtain compliance with its codes, set out a  relevant
portion  of the building code, noted Pruitts unsuccessful  appeal
to  the Planning and Zoning Commission (the commission had denied
Pruitts  request  for  a variance), and notified  Pruitt  not  to
occupy  the building until the noted items were corrected  and  a
certificate of occupancy issued.  It ended with this  notice:  As
always, you can appeal this decision to the City Council  if  you
desire.
          Why  Pruitt  had constructive notice of  his  right  to
appeal
          As  noted above, this long-running dispute between  the
city  and  Pruitt  involved multiple communications  between  the
parties.   The  city frequently brought to Pruitts attention  its
concern  that  his building would violate the zoning  code16  and
that  its construction violated the building code.17  Pruitt  was
informed of his right to seek a variance (and did so), after  the
city sent him the relevant codes.  He had constructive notice  of
the  availability  of the right to appeal set  out  in  both  the
building and zoning codes.18
          Why  it  is  entirely equitable to  enforce  the  citys
zoning and building codes in this case
          The court implicitly faults the city for expressing its
determination  informally, and  notes that in such  cases  courts
will  determine the finality of the informal expression based  on
what  is  most equitable in that case. Even accepting the  courts
characterization,19 there is no inequity in the  superior  courts
resolution  of  this case.  Pruitt ignored multiple notifications
that,  in  the  view of the responsible officials,  his  proposed
building would violate the law.  He went ahead and built it.   He
was  told  that  he should not occupy it until a  correction  was
made.  He went ahead and occupied it.  When he determined that he
needed  to  add  a loading dock, he was told that  he  could  not
obtain  the  necessary  permit without  correcting  the  original
violation.   Rather than comply, he constructed the loading  dock
without making the corrections, without obtaining the certificate
of  occupancy, and even without obtaining a building  permit  for
the  new  construction.  It is hard for me to accept  the  courts
unstated conclusion that Pruitt has any claim to this courts  (or
Judge  Christens)  power  to do equity  where  the  circumstances
demand it.
          For  these  reasons, I respectfully  dissent  from  the
courts decision to vacate the superior courts judgment.
_______________________________
     1    See SCC  15.10.220; SCC  15.10.140.

     2    Seward City Code  15.10.410 states in pertinent part:

          (b)    Appeals   standing.   Any  person   or
          persons    aggrieved   by   an   action    or
          determination  taken under this  chapter  may
          appeal said action or determination.
          
          (c)    Time  limitation.   An  appeal  of   a
          decision  of  the administrative official  or
          the  Seward  planning and  zoning  commission
          must  be filed within ten days of the  action
          or  determination being appealed. . . .   Any
          decision  not  appealed  within  these   time
          limits shall become final.
          
     3    SCC  15.10.410(c).

     4     Matanuska  Elec. Assn v. Chugach Elec. Assn,  99  P.3d
553, 558 (Alaska 2004).

     5    See SCC  15.10.410(b).

     6     See Carlson v. Renkes, 113 P.3d 638, 642 (Alaska 2005)
(holding thirty-day appellate period had not begun because letter
issuing opinion did not indicate that opinion was final or inform
of  appellate procedure); Manning v. Alaska R.R. Corp., 853  P.2d
1120,  1124  (Alaska 1993) (holding agency must clearly  indicate
that  its  opinion  is final order and that aggrieved  party  has
thirty  days  to  appeal under Appellate Rule 602);  Skudrzyk  v.
Reynolds, 856 P.2d 462, 463 (Alaska 1993) (holding that Appellate
Rule  602  did  not bar late-filed administrative appeal  because
letter  from  university president did not indicate that  it  was
final decision).

     7     Cf. Owsichek v. State, Guide Licensing & Control  Bd.,
627  P.2d  616,  622  (Alaska 1981) (holding  that  doctrines  of
surprise and excusable neglect allowed guide  to administratively
appeal  boards  determination after appellate period  had  passed
because  board had not notified him that its decision  was  final
and  appealable).   Cf. Song v. Song, 972 P.2d 589,  594  (Alaska
1999)  (holding that fairness required trial court to both notify
litigants  that  it  was  converting  their  stipulated   marital
dissolution  proceeding  into  divorce  proceeding  and   provide
evidentiary hearing on disputed property issues).

     8    2 Richard J. Pierce, Administrative Law Treatise  15.11
(4th ed. 2002).

     9    2 Pierce, supra note 10, at  15.15.

     10     2  Frank  E. Cooper, State Administrative  Law  59293
(1965).

     11     2 Cooper, supra note 12, at 59293; see also Owsichek,
627 P.2d at 622.

     12    See SCC  15.10.110.430.

     13    Pruitts affidavit appears to interchange the years 2003
and  2004.   For example, it states that the commission discussed
altering  the  setback  requirement at  meetings  on  October  8,
November  5,  and December 2, 2004.  But then it  states  that  a
proposed amendment changing the setback requirement was presented
at  the  December  2,  2003  meeting.  Because  he  executed  his
affidavit  on  July  7, 2004, we assume that  Pruitt  erroneously
attributed  the commissions meetings to 2004 when  in  fact  they
occurred in 2003.

     14    SCC  15.10.140 (defining setback as used in the zoning
code);  SCC   15.10.220 (outlining setback requirements  in  each
zoning district and describing purpose of setback requirement).

     15    Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d
119 (Alaska 1988).

     16    Id. at 120.

     17    Id. at 121.

     18    Id.

     19    Id. at 122.

     20    Id. at 121.

     21    Id.

     22    Varilek v. City of Houston, 104 P.3d 849, 85253 (Alaska
2004).

     23    Id. at 853.

     24     Matanuska Elec. Assn v. Chugach Elec. Assn,  99  P.3d
553, 558 (Alaska 2004).

     25    SCC  15.10.325(d)(6).

     26    See SCC  15.10.325(d).

     27     South Anchorage Concerned Coalition, Inc. v.  Coffey,
862 P.2d 168, 173 n.12 (Alaska 1993).

     28     Griswold  v.  City of Homer, 55 P.3d 64,  68  (Alaska
2002).

     29    Id.

     30     See Kaufman v. City of Glen Cove, 45 N.Y.S.2d 53,  62
(N.Y.  App.  Div. 1943) (noting that implicit in  every  variance
proceeding  is  the  justified  assumption  that  the   ordinance
prohibits the proposed use).

     31     Id.  at 61 (holding that decision of zoning board  in
rejecting  variance  application does  not  bar  subsequent  suit
seeking declaratory judgment that provision of ordinance does not
prohibit  desired  use  because  issues  in  variance  cases  are
fundamentally different than issues challenging interpretation of
zoning code).

     32     Id.  at  62 (stating that in variance proceeding  any
decision as to whether the ordinance, by its terms, does or  does
not  prohibit the proposed use, is unnecessary and is a  decision
upon  an  immaterial  issue.   It is well  established  that  any
decision  upon  an  immaterial issue is  not  binding  in  future
litigation.).

     33    SCC  15.10.140.

     34     We  note  that one definition of eave is a projecting
edge.  Websters Third New International Dictionary 717 (1966).

     35    SCC  15.10.220(c)(1).

     36     We  express  no  opinion as to whether  it  would  be
irrational for the commission to decide that canopies are not the
same  as  building eaves for purposes of the setback  requirement
and  that it is desirable to prevent canopies from intruding into
setbacks.   There  is no reason for us to decide  or  express  an
opinion about that issue before it becomes ripe.

     37     See  2 Pierce, supra note 10, at  15.4 (stating  that
courts  should refuse to decide merits of case and send back  for
exhaustion  of  administrative  remedies  when  merits  issue  is
unclear and subject to controversy).

     38    See supra notes 29 & 30 and accompanying text.

     39    Pruitt also argues that the citys interpretation of SCC
15.10.140  violated his right to equal protection and substantive
due  process under the Alaska Constitution. Because we vacate the
superior  courts  order and remand for further consideration,  we
need not address these arguments.

          We  have  been  informed that Pruitt  has  brought  the
canopy  into compliance with the citys reading of the code.   The
parties have not contended that this circumstance would moot this
appeal,  and  the  citys  appellate  brief  states  that   Pruitt
apparently  wants  to  rebuild the canopy in  violation  of  City
ordinances.

1      See  (1)  Letter,  Linda-Rae  Olsen,  Planning  Clerk,  to
James  Pruitt, August 18, 2000, advising Pruitt that canopy  will
extend  into  the  setback;  (2) Fax, Linda-Rae  Olsen,  Planning
Clerk,  to  James Pruitt, August 23, 2000, informing Pruitt  that
the  canopy situation may not fall under [city zoning code];  (3)
Letter,  Rachael James, City Planner, to James Pruitt,  March  6,
2001, stating [b]ased on the building site plan, the canopy is in
violation  of  City Code  15.10.140; (4) Inspection Report,  Dave
Calvert,  City Inspector, to Jim Pruitt, May 21, 2001, commenting
Canopy  is  still  in the setback;  (5) Inspection  Report,  Dave
Calvert,  City Inspector, to James Pruitt, June 4,  2001,  noting
Canopy  still  in  setback;  (6) Letter, Dave  Calvert,  Manager,
Engineering  & Utilities, to James Pruitt, Oct. 24, 2001,  citing
removal or modification of the Canopy as primary item that needed
to  be  corrected to qualify for a Certificate of Occupancy;  (7)
Letter, Dave Calvert, Building Official, to James Pruitt, May  6,
2003, explaining that the denial of a permit for the loading dock
was due to having the  Canopy in the set back.

     2     Affidavit of Dave Calvert, Building Official,  stating
that  on June 4, 2001 Pruitt was notified . . . verbally as  well
as  in  writing  that  the canopy was in  the  setback  and  that
building  officials had numerous communications with  Mr.  Pruitt
regarding the canopy.

     3     Affidavit of Dave Calvert, Building Official, stating,
I conducted two [post-construction] inspections . . . and on both
of the inspection forms noted that the canopy was in the setback.

     4     Affidavit  of James T. Pruitt, noting,  The  City  has
refused  to  issue a certificate of occupancy . . . and  to  even
consider  an  application  for  a  building  permit  for  further
improvements  at this location because the canopy is  an  alleged
violation.

     5     Letter,  Dave  Calvert, Building  Official,  to  James
Pruitt,  May  1,  2003, noting Pruitt occupied the  building  and
[has]  been  operating a business (Ace Hardware) since  November,
2001  in  violation of the code, and [has] not responded  to  our
requests for a correction of the violation.

     6     Affidavit of Dave Calvert, Building Official, stating,
I  informed  Mr.  Pruitt  that I would  be  unable  to  issue  [a
building]  permit  until  he  had corrected  the  canopy  setback
problem and obtained a C.O. for the building.

     7     Letter,  Dave  Calvert, Building  Official,  to  James
Pruitt, May 6, 2003, noting that Pruitt had constructed a loading
dock  and  citing  the canopy in the setback as  the  reason  for
previously  denying  a  permit for construction  of  the  loading
dock.

     8     Id., citing Pruitts lack of an occupancy permit as the
reason for denying a permit to construct the loading dock.

     9     Affidavit of Dave Calvert, Building Official,  stating
Pruitt  built  the  loading dock without  a  permit  and  without
notifying me.

     10    Letter,  Dave  Calvert, Building  Official,  to  James
Pruitt, May 6, 2003, warning Pruitt that  he was in violation  of
the  building  code; Letter, Dave Calvert, Building Official,  to
James  Pruitt, July 28, 2003, noting that almost ninety days  had
passed since the initial notice of violation.

     11    City  of Sewards Complaint, Case No. 3AN-03-13457  CI,
Nov. 20, 2003.

     12    Letter,  Dave  Calvert, Building  Official,  to  James
Pruitt,  Oct. 24, 2001, stating, As always, you can  appeal  this
decision to the City Council if you so desire.

     13     Section  105  of  the  1997  Uniform  Building   Code
establishes  the Board of Appeals to hear and decide  appeals  of
orders,  decisions  or determinations made by building  officials
relative to the application and interpretation of this code . . .
.

     14   See supra nn.1-2.

     15   See supra n.3.

     16    See,  e.g.,  Letter, Linda-Rae Olsen, City  Clerk,  to
Pruitt  on  August 18, 2000, informing him that the canopy  would
violate the zoning code and setting out the relevant section  and
her faxed letter to Pruitt on August 23, 2000 sending information
on obtaining a variance.

     17    See, e.g., Letter, Dave Calvert, Building Official  to
Pruitt  on  May 6, 2003 explaining that a permit for the  loading
dock  was  denied  because the building was in violation  of  the
building code.

     18    Seward  City Code 15.10.410 (appeals under the  zoning
code);  Section  105, 1997 Uniform Building Code (citys  building
code in effect at the time pertinent to this case) (appeals under
the building code).

     19     It   is  difficult  to  do  so.   There  is   nothing
particularly informal about multiple written notifications from a
city to a citizen that the citizen has violated the law.

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