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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. South Anchorage Concerned Coalition, Inc. v. Municipality of Anchorage Board of Adjustments (12/14/2007) sp-6209

South Anchorage Concerned Coalition, Inc. v. Municipality of Anchorage Board of Adjustments (12/14/2007) sp-6209, 172 P3d 768

     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,


CONCERNED COALITION, INC., ) Supreme Court No. S- 12286
Appellant, ) Superior Court No. 3AN-04-11770 CI
v. ) O P I N I O N
MUNICIPALITY OF ANCHORAGE ) No. 6209 - December 14, 2007
Appellees. )
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial  District, Anchorage, John  Suddock,

          Appearances:  Lawrence V. Albert,  Anchorage,
          for  Appellant.   Donald  W.  McClintock  and
          Matthew  T.  Findley, Ashburn & Mason,  P.C.,
          Anchorage, for Appellees Hultquist.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Bryner,  and Carpeneti, Justices.  [Matthews,
          Justice, not participating.]

          PER CURIAM.

          This  appeal  arises  from  opposition  to  a  proposed
residential  development  on  several  hundred  acres  in   south
Anchorage.    Appellant  South  Anchorage   Concerned   Coalition
appealed  the Platting Boards preliminary approval of a plat  for
the  development  to  the  Municipality  of  Anchorage  Board  of
Adjustment,  but its appeal was automatically denied  because  it
did  not file the hearing transcript within the thirty-day period
set  forth  in the Anchorage Municipal Code.  Both the  municipal
clerk  and the Board of Adjustment denied that they had authority
to  waive the deadline and accept the late transcript.   We  read
the  ordinance at issue to be directory, not mandatory, and  hold
that  the  Board of Adjustment therefore has discretion to  waive
the  deadline  and to allow the appeal to proceed.  We  therefore
          This  appeal is one of several proceedings  related  to
the  Kincaid Estates development on former gravel pits  in  south
Anchorage.1   The procedural history of the case is  complex  and
largely  irrelevant to the matter of this appeal.  In short,  the
Hultquists,  appellees here, first applied for  approval  of  the
plat  at  issue  in this appeal in November 2001.   The  Platting
Board ultimately approved the application in July 2004. The South
Anchorage Concerned Coalition (the Coalition), on behalf of those
opposed to the development, appealed the Platting Boards decision
to the Board of Adjustment.
          The  Coalition filed notice of appeal of  the  Platting
Boards  decision  to the Board of Adjustment on August  5,  2004.
Anchorage Municipal Code (AMC) 21.30.050(B) provides that  within
thirty days of filing notice of an appeal, an appellant must file
with the municipal clerk a transcript of the hearing that is  the
subject  of  the appeal; if the appellant fails  to  do  so,  the
appeal  shall  be  automatically  denied.2   The  Coalition   had
prepared a transcript but, due to a calendaring error, failed  to
file  it.   Shortly after the thirty-day period  for  filing  the
transcript  expired, the clerk notified the  Coalition  that  its
appeal had been denied under subsection .050(B).
          The  Coalition filed a motion to set aside  the  clerks
dismissal  of  its  appeal,  along with  the  transcript  of  the
Platting  Boards  hearing, on September 20, 2004,  thirteen  days
after  the  September  7  deadline.  The Hultquists  opposed  the
          The  Board  of Adjustment held a hearing  at  which  it
denied the Coalitions motion and affirmed the clerks dismissal of
the  appeal.   The  Board of Adjustment did not issue  a  written
decision, but in discussing the matter, members of the  Board  of
Adjustment  expressed their belief that they were only authorized
to  hear  an appeal that had been properly presented to them  and
were  powerless to second guess the municipal clerks decision  to
dismiss an appeal for failure to meet the deadline.
          The  Coalition  interpreted the  Board  of  Adjustments
decision  to  mean  that the code authorized only  the  municipal
clerk to relax the deadline; accordingly, the Coalition requested
that  the  clerk   as  the administrator issuing  the  letter  of
dismissal  set aside the dismissal.  The clerk responded that the
Coalitions  analysis  was  incorrect.  Implying  that  she,  too,
lacked authority to waive the deadline, she stated only that  the
Board  of  Adjustment had authority . . . to exercise independent
judgment  on  legal  issues such as this and that  the  Board  of
Adjustment  had found no basis to reverse the clerks decision  to
          dismiss the appeal.
          The  Coalition  then  appealed to the  superior  court,
arguing that the Board of Adjustment was authorized to set  aside
appeals  dismissed  under AMC 21.30.050(B).  The  superior  court
disagreed;   it  held  that  the  ordinance  mandated   automatic
dismissal  and that it was just impossible to read it  any  other
way.   The court acknowledged that allowing the appeal to proceed
would  not have prejudiced the Hultquists: if the Board  had  had
the authority and had failed to lighten up on these facts, . .  .
it  would have been . . . an abuse of discretion.  But the  court
distinguished  municipal ordinances from court  rules  and  other
procedural  statutes and noted that neither it nor the  Board  of
Adjustment  had authority to waive a deadline established  by  an
independent ordinance-creating body.
          The  Coalition petitioned for rehearing on  the  ground
that  the  court  misconceived an issue  of  law  by  failing  to
consider  the  Anchorage  Municipal Assemblys  past  practice  of
routinely   allowing   appeals  to  proceed  despite   late-filed
transcripts.3  In support of its motion, the Coalition  submitted
evidence  of  five instances when the Municipal Assembly   before
the formation of the independent Board of Adjustment  relaxed the
filing  deadline.  Reasoning that the current Board of Adjustment
had  set forth a principled justification for departing from  any
past  policy  of  the  Assembly  to  be  more  lenient  with  the
transcript  filing  deadline,  the court  denied  the  Coalitions
petition for rehearing.  It did grant the Coalition permission to
supplement  the record with minutes from past meetings  in  which
the Assembly had waived the transcript deadline.
          The  Coalition  appeals the decision of  the  Board  of
Adjustment refusing to set aside dismissal of its appeal.
     A.   Standard of Review
          When  the superior court acts as an intermediate  court
of  appeals in an administrative matter, we independently  review
the merits of the agencys decision.4   At issue in this appeal is
whether the Board of Adjustment correctly interpreted and applied
a  procedural ordinance.  Because this does not implicate special
agency  expertise  or  the determination of fundamental  policies
within  the  scope  of the agencys statutory  function,  we  will
substitute our independent judgment for that of the agency.5
          Ordinary  principles of statutory interpretation  apply
to  our  consideration  of the ordinance at  issue  here.6   When
interpreting a statute or ordinance, our goal is to  give  effect
to  the  intent  of the law-making body with due regard  for  the
meaning  that the language in the provision conveys  to  others.7
We  adopt  the rule of law that is most persuasive  in  light  of
precedent, reason, and policy.8
     B.   Discretion To Waive the Transcript Filing Deadline
          The Coalition argues that the Assemblys prior policy of
lenity should govern the Board of Adjustments current application
of  the  transcript filing deadline. The Hultquists counter  that
the Assemblys past practice was a mistake of law, not an exercise
of  discretion, and that the Board of Adjustment was  correct  in
strictly applying the ordinance.
          Whether  a party must strictly comply with a procedural
rule, regulation, or statute turns on whether the language of the
law  is  mandatory  or  directory.9  If a statute  is  mandatory,
strict  compliance  is required; if it is directory,  substantial
compliance  is  acceptable absent significant  prejudice  to  the
other  party.10   A statute is considered directory  if  (1)  its
wording   is  affirmative  rather  than  prohibitive;   (2)   the
legislative  intent  was  to create guidelines  for  the  orderly
conduct   of   public   business;  and  (3)  serious,   practical
consequences would result if it were considered mandatory.11
          We conclude that the language of the ordinance at issue
satisfies   these  criteria  and  hold  that  it  is,  therefore,
directory.  Anchorage Municipal Code 21.30.050(B) reads:
          The   appellant   shall   arrange   for   the
          preparation  of the transcript of  the  board
          hearing  by  a court reporter or the  current
          board and commission recording secretary  and
          shall  pay the cost of such preparation.  The
          appellant shall file the transcript with  the
          municipal  clerk. If the appellant  fails  to
          file  the  transcript within 30 days  of  the
          filing  of  the notice of appeal, the  appeal
          shall be automatically denied.
          First,   the  ordinances  language  is  in  no  respect
prohibitive;  the  ordinance  assigns  responsibility   for   the
preparation  and  filing of the transcript, but never  speaks  to
what  the  appellant,  the  municipal  clerk,  or  the  Board  of
Adjustment can or should not do.
          As to the second prong of the test, the language of the
          ordinance is more equivocal.  The last clause of the provision,
the  appeal  shall  be automatically denied, arguably  imposes  a
penalty on the appellant for failing to meet the filing deadline.
Alternatively, this clause can be interpreted to be a ministerial
directive  guiding the municipal clerks management of  the  case.
Seen  this  way,  the  ordinance falls more  squarely  into  that
category of provisions intended to be guidelines for the  orderly
conduct  of  public business.12  We favor this  construction  for
several reasons.
          For one, the plain language of AMC 21.30.050 as a whole
speaks directly to the duties of the municipal clerk rather  than
to  the  broader  requirements  for  establishing  the  Board  of
Adjustments  ultimate  jurisdiction over the  case.13   In  other
words,  the task at issue here  namely the filing of a transcript
is  set  apart  from the three steps an appellant  must  take  to
perfect  an appeal to the Board of Adjustment: (1) file a  notice
of appeal; (2) pay an appeal fee; and (3) post a cost bond within
twenty  days  of the Platting Boards final decision.14   Once  an
appellant  has  accomplished these steps, jurisdiction  over  the
appeal  is  conferred  on  the Board of Adjustment.   The  timely
filing  of  a  transcript has no bearing on  this  jurisdictional
process; failure to meet the transcript filing deadline is simply
a  failure to follow guidelines for the orderly conduct of public
business15  that  triggers  another  such  guideline:   automatic
dismissal.   A  guideline  of this kind should  not  irreversibly
jeopardize  the Board of Adjustments jurisdiction to control  the
course of the appeal.
          The  language of the provision does use the word shall,
which,  in  its ordinary use, is an affirmative command  that  is
often  taken  to be mandatory.16  But we have held that  in  some
contexts, namely in the absence of injury to the defendant and in
the  absence of a penalty for failure to comply with the statute,
shall  denotes simple futurity rather than a command.17  In State
v.  Schnell,  for example, we applied that rule to  hold  that  a
statute providing that [w]ithin 30 days after termination of  the
hearing,  .  . . the director shall make an order on hearing  was
directive, not mandatory, because the statute imposes no  penalty
or  consequences for failing to rule timely.18  We further  noted
that  to  read the statute as imposing an absolute bar  on  state
action  after the thirty-day period expired would lead to  absurd
and undesirable results.19
          In  another case, we relied on Schnell to hold  that  a
rule  stating that a hearing committee will promptly  schedule  a
hearing  to  take  place within 30 days  of  the  filing  of  the
petition was directive.20  In addition to the factors discussed in
Schnell,  we  emphasized that the primary  purpose  of  the  time
limits is merely to provide a broad set of guidelines for how the
Hearing Committee . . . should proceed.21  We likewise noted that
serious,  practical consequences were at stake in that  a  strict
time  limit  in this context would fail to take into account  the
many  common exigencies and contingencies of litigation and would
clearly  inhibit the discretion of the Hearing Committee to  make
adjustments for these or other similar events.22
          As  in  these  cases, the primary purpose of  the  time
          limit at issue here is to set guidelines directing how the clerk
should proceed when a timely transcript has not been filed.   The
deadline for filing briefs in platting board appeals starts  with
service of the record upon the parties.23  A late-filed transcript
which  is  part of that record  merely delays the start  of  this
thirty-day  period;  this  does  not  necessarily  prejudice   an
appellee  in the presentation of a case, and the Hultquists  have
not  advanced any specific claim of prejudice here.  In our view,
the  primary  purpose  of the directive is to  guide  the  clerks
orderly management of the case, not to impose a litigation-ending
sanction on the appellant.
          The  third prong of the test is also met here:  serious
practical   consequences  would  result  if  the  deadline   were
considered mandatory.  To dismiss an appeal for failure to timely
file a transcript, without prior notice and an opportunity to  be
heard,  would  present procedural due process concerns.24   Apart
from  amounting to an automatic litigation-ending sanction,25  an
unalterable consequence of this kind would inhibit the discretion
of  the  Board of Adjustment to entertain potentially meritorious
appeals.26  As we have observed before, [i]t is always within the
discretion  of a court or an administrative agency  to  relax  or
modify  its  procedural rules adopted for the orderly transaction
of  business before it when in a given case the ends  of  justice
require  it.27  Accordingly, we hold that the Board of Adjustment
has  the discretion to relax the filing deadline set forth in AMC
21.30.050(B) and to allow the appeal to proceed.28
          For  these reasons, we REMAND the case to the Board  of
Adjustment to consider whether the factual circumstances of  this
case  warrant  relaxing the deadline and allowing the  Coalitions
appeal to proceed.29
     1     See  S.  Anchorage Concerned Coal. v. Municipality  of
Anchorage,  ___  P.3d  ____, Op. No. 6210 (Alaska,  December  14,

     2    AMC 21.30.050(B) (1996).

     3    We note that, after the Coalition filed its appeal, the
Anchorage  Municipal  Assembly amended the Board  of  Adjustments
enabling    statute,   converting   it   into   an    independent
administrative  entity composed of three members  with  staggered
terms.  Previously, the Assembly itself had acted as the Board of
Adjustment for appeals from decisions of the Platting Board.

     4    Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002).

     5     Alaska  Pub. Employees Assn v. State, 831  P.2d  1245,
1247  (Alaska 1992) (citing Tesoro Alaska Petroleum Co. v.  Kenai
Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)).

     6     See, e.g., City of Skagway v. Robertson, 143 P.3d 965,
968  (Alaska 2006); Marlow v. Municipality of Anchorage, 889 P.2d
599, 602 (Alaska 1995).

     7     Marlow, 889 P.2d at 602 (internal quotation marks  and
citations omitted).

     8    Robertson, 143 P.3d at 968 (citation omitted).

     9     See  In re Reinstatement of Wiederholt, 24 P.3d  1219,
1233  (Alaska  2001); see also State, Dept of  Commerce  &  Econ.
Dev., Div. of Ins. v. Schnell, 8 P.3d 351, 357 (Alaska 2000).

     10    In re Wiederholt, 24 P.3d at 1233 (citation omitted).

     11     Id. (quoting City of Yakutat v. Ryman, 654 P.2d  785,
789-91 (Alaska 1982)).

     12    In re Wiederholt, 24 P.3d at 1233.

     13     See  AMC 21.30.050(A) (Upon timely perfection  of  an
appeal  to  the  board of adjustment, the municipal  clerk  shall
prepare an appeal record. The record shall contain . . . .).

     14    AMC 21.30.030(A)(1).

     15    In re Wiederholt, 24 P.3d at 1233.

     16     State, Dept of Commerce & Econ. Dev., Div. of Ins. v.
Schnell, 8 P.3d 351, 357 (Alaska 2000) (citing Commr of  Ins.  v.
Stryker, 463 S.E.2d 163, 166 (Ga. App. 1995)).

     17    Id. (citing Stryker, 463 S.E.2d at 166).

     18      Id.   (quoting   AS  21.06.220(a)  (alterations   in

     19     Id.   In Schnell, the undesirable result was  that  a
license  holder would be insulated from justifiable state  action
against his or her license.  Id.

     20    In re Wiederholt, 24 P.3d at 1232-33.

     21    Id. at 1233.

     22    Id.

     23    AMC 21.30.060.

     24    See Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

     25     See Arbelovsky v. Ebasco Servs., Inc., 922 P.2d  225,
227 (Alaska 1996).

     26    In re Wiederholt, 24 P.3d at 1233.

     27    Forquer v. State, Commercial Fisheries Entry Commn, 677
P.2d 1236, 1243 (Alaska 1984) (citation omitted).

     28    Notably, past practices of the Assembly  which authored
the ordinance  indicate that it, too, historically understood the
provision  to  be  directory, not mandatory.  The  Coalition  has
provided  evidence of at least four separate occasions where  the
Assembly relaxed the transcript filing deadline.

     29     Our disposition of this issue makes it unnecessary to
address other issues raised by the Coalition.

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