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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Luper v. City of Wasilla (09/11/2009) sp-6411

Luper v. City of Wasilla (09/11/2009) sp-6411

     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,


) Supreme Court No. S- 12880
Appellant, )
) Superior Court No. 3PA-06-1253 CI
v. )
) O P I N I O N
) No. 6411 September 11, 2009
Appellee. )

          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Beverly Cutler, Judge.

          Appearances: Kenneth P. Jacobus,  Kenneth  P.
          Jacobus,   P.C.,  Anchorage,  for  Appellant.
          Thomas  F.  Klinkner, Birch, Horton,  Bittner
          and Cherot, Anchorage, for Appellee.

          Before:     Fabe,  Chief  Justice,  Eastaugh,
          Carpeneti, Winfree, and Christen, Justices.

          EASTAUGH, Justice.

          Deborah Luper raises dogs on property she owns  in  the
City  of  Wasilla.  City ordinances applicable  to  her  property
prohibited  keeping more than three dogs without a permit.   When
the  city sued Luper to enforce its ordinance, she applied for  a
use  permit  for  an eighteen-dog kennel.  The  city  denied  her
permit  application  and she appealed.  After  consolidating  her
permit  appeal  with the citys enforcement action,  the  superior
court denied her appeal and granted the city summary judgment  in
its enforcement action.  We affirm.  Because substantial evidence
supported the Wasilla City Planning Commissions factual  findings
and   because   the  commission  had  a  reasonable   basis   for
interpreting  its  ordinance  as it did,  it  permissibly  denied
Lupers  permit  application.  Because the city  disproved  Lupers
affirmative  defenses  and  was  otherwise  entitled  to  summary
judgment,  the  superior court did not err  in  granting  summary
judgment  to  the city in the enforcement action.   Finally,  the
citys   former   three-dog  Rural  Residential  limit   was   not
unconstitutional as applied to Luper.
          Wasilla  Municipal Code (WMC) 16.12.010 and  16.20.010-
.020  are  zoning  ordinances that require a  property  owner  to
obtain  a  use permit before operating a dog kennel  in  a  Rural
Residential  zoning  district  in  the  City  of  Wasilla.1    An
ordinance in effect at times relevant to this case defined kennel
as  a  use or lot in which more than three dogs, over four months
of  age,  are kept.2  Wasilla Municipal Code 16.16.050(A)  states
that a use permit may be granted if the applicant proves that the
proposed  use  meets  all  general  criteria  enumerated  in  WMC
16.16.050 and any applicable specific criteria enumerated in  WMC
          Deborah Luper owns an approximately one-acre parcel  of
Rural  Residential  Wasilla property, on  which  she  operates  a
shetland  sheepdog  (sheltie) kennel with approximately  eighteen
dogs  over four months of age.  She describes the operation as  a
hobby  kennel.  Luper applied for a use permit in May  2005;  the
commission  denied  her application.  On May 8,  2006,  the  city
filed suit in the superior court to enjoin Luper from maintaining
the  kennel without a use permit.  Luper applied again for a  use
permit the same day.  The Wasilla City Planning Commission held a
hearing  on her permit application and denied her application  in
June  2006.   Luper  appealed.   On appeal  the  hearing  officer
considered  the  totality of evidence and the  record,  including
evidence  presented to the hearing officer, and  determined  that
the  commission  did  not err in denying  Lupers  permit  appeal.
Luper appealed to the superior court.  In December 2006 the court
consolidated  Lupers  permit appeal with  the  citys  enforcement
          The  city moved for summary judgment in the enforcement
action.   Luper opposed the motion, asserting several affirmative
defenses.  In December 2006 the superior court granted the  citys
motion  and  enjoined  Luper from maintaining  a  kennel  on  her
property;  the order did not directly address Lupers  affirmative
defenses.   The  city  voluntarily deferred  enforcement  of  the
injunction  pending  the  superior courts  resolution  of  Lupers
permit appeal.
          In  September  2007  the superior  court  affirmed  the
denial  of  Lupers  use permit application.  In  the  enforcement
action,  the superior court granted the citys motion for  summary
judgment on all remaining issues.
          Luper  appeals  the  rulings in  both  the  enforcement
action and her permit appeal.

     A.   Standard of Review
          In an administrative appeal we independently review the
merits  of  the  agencys decision.3  Zoning board  decisions  are
accorded  a  presumption of validity.4  We apply the  substantial
evidence  standard of review to questions of fact.5   Substantial
evidence  is  such relevant evidence as a reasonable  mind  might
accept  as  adequate  to support a conclusion.6   In  determining
whether the commission erred in denying Luper a permit, we  apply
the reasonable basis standard of review,7 under which we defer to
the  agencys  interpretation unless it is plainly  erroneous  and
inconsistent with the regulation.8
          We  review grants of summary judgment de novo,  viewing
the facts in the light most favorable to the non-prevailing party
and affirming if there are no genuine issues of material fact and
the prevailing party is entitled to judgment as a matter of law.9
A  plaintiffs motion for complete summary judgment must expressly
disprove every affirmative defense of the answer.10
     B.   Whether the Commission Erroneously Denied Luper  a  Use
           Luper  argues  that there are three  reasons  why  the
commission erred in denying her a use permit.11
          First,  she  argues  that  the  public  notice  of  the
commission hearing was [c]onstitutionally invalid, apparently  on
due   process  grounds,  because  it  did  not  contain  all  the
information  that Luper had requested be included,  such  as  her
intention  to build an additional building or the fact that  most
of  her  dogs  were  debarked.  The notice indisputably  met  the
requirements of the applicable ordinance.12  And it satisfied due
process  because  it provided sufficient notice  of  the  hearing
under  the  ordinance;  indeed,  Luper  does  not  argue  to  the
          Second,  she  argues that the judicial dismissal  of  a
prior   criminal  citation  against  her  for  animal   annoyance
collaterally estopped the commission from making factual findings
contrary to the findings made in the criminal proceeding.  We are
unconvinced.   [I]ssue preclusion prevents a party from  pursuing
an  issue in a second action that is identical to one decided  in
the first action.14  Because both the relevant burdens of proof15
and  the issues adjudicated16 materially differed between the two
proceedings,  the  dismissal  did not  have  collateral  estoppel
effect on the proceedings before the commission.17
          Third, she argues that the commissions factual findings
were unsupported by substantial evidence and were insufficient to
support  denial  of her permit application.  The commission  made
three  factual findings on which it appeared to base its  denial:
(1)  there  were  twenty-four  written  comments  from  neighbors
opposing the application and only one supporting the application;
(2)  there were potential groundwater contamination and  drainage
issues;  and  (3)  there were potential noise  and  odor  issues.
Despite Lupers assertions to the contrary,18 substantial evidence
supported   all   three  findings.19   Wasilla   Municipal   Code
16.16.050(A)  requires an applicant to meet all of  the  criteria
listed  in  WMC  16.16.050 and .060, including due  deference  to
          neighbors comments, appropriate drainage, and minimal off-site
impacts.20   Because the commissions factual findings demonstrate
that  Luper  did  not  meet  all the  criteria,  the  commissions
interpretation  of  its ordinance as allowing  denial  of  Lupers
permit application was reasonable.21  The commission therefore did
not err in denying Lupers use permit application.
          Luper argues in the alternative that the commission was
required  to engage in settlement discussions with her  regarding
conditions  under which it would grant her a permit.  But  Lupers
permit application did not propose any limits or conditions.   At
the commission hearing she proposed a twenty-adult-dog limit; the
commission implicitly declined to grant a permit with  only  that
condition.    The   relevant  ordinances  make   the   commission
responsible   only   for   determining  whether   the   submitted
application  meets  the criteria for granting  a  permit.22   The
ordinances do not place the burden on the commission to negotiate
mutually  acceptable  conditions with the  applicant.23   Because
Luper  did  not  propose  additional  conditions,  she  has   not
preserved her contention that the commission erred in failing  to
grant a more-limited conditional use permit.
     C.   Whether  the  Superior Court Erred in Granting  Summary
          Judgment to the City
          Luper  conceded  in  the superior court  that  she  had
violated  zoning  ordinances, but argued that the  city  was  not
entitled  to  complete  summary  judgment  because  it  had   not
disproved her affirmative defenses.  Luper argues on appeal  that
the  city did not adequately disprove her affirmative defenses,24
and  that the superior court therefore erred in granting  summary
judgment  to  the city in the enforcement action.  She  does  not
argue  that there is a genuine dispute of material fact  or  that
the  undisputed  facts  are insufficient to  establish  a  zoning
violation as a matter of law.
          She first asserts that the city should be estopped from
enforcing  its use permit requirement because when she  purchased
the  property, she reasonably relied on the city clerks statement
that  she only needed a kennel license to operate a hobby kennel.
We  consider  four  factors when estoppel is asserted  against  a
municipality:  (1) the municipalitys assertion of a  position  by
conduct   or   word;  (2)  reasonable  reliance;  (3)   resulting
prejudice; and (4) the interests of justice.25  Lupers argument is
unpersuasive because it is not reasonable to rely on a government
employees  statement  that is at variance  with  the  law,26  and
because  the interests of justice would not be served by  binding
the city on a relatively offhand verbal comment that is allegedly
the basis for deciding whether to purchase a home.
          Second, Luper argues that the city selectively enforced
its  ordinances against only her.  Because Luper failed  to  meet
her   burden   of  demonstrating  that  the  city   intended   to
discriminate  against her based on an arbitrary or  unjustifiable
classification,27  the superior court correctly  granted  summary
judgment  to  the  city  on  this  issue.   Contrary  to   Lupers
assertions, none of the evidence that Luper presented on  summary
judgment   demonstrates  differential  treatment  or  intent   to
          discriminate: (1) the citys admission that it had no record of
issuing a kennel license to any person other than [Luper] in  the
previous three years does not demonstrate differential treatment;
(2)  none  of  the  proceedings Luper identifies involving  three
previous permit applications demonstrates differential treatment;28
and  (3)  even assuming Lupers assertions that the city  did  not
enforce  the relevant ordinances against her neighbors are  true,
we  have  held that mere failure to enforce an ordinance  against
others   similarly  situated  does  not  itself  prove  selective
enforcement in the absence of evidence of discriminatory intent.29
          Finally,  Luper  contends that  the  mayor  of  Wasilla
improperly interfered with the permit process by terminating time
extensions,  interfering with Lupers employment, and tr[ying]  to
insert  herself into the appeal proceeding.  Luper  presented  no
evidence  linking  this  alleged  conduct  with  the  commissions
denial.   Luper therefore failed to demonstrate that  the  mayors
alleged actions interfered with the commissions consideration  of
her application.
          Because  the  city  has  demonstrated  that  the  three
affirmative defenses Luper discusses on appeal are without merit,
and   there  is  no  genuine  factual  dispute  material  to  the
enforcement action, we conclude that the superior court  did  not
err in granting summary judgment for the city.
     D.   Whether the Three-Dog Limit Was Unconstitutional
          Luper  argues that Wasillas former three-dog limit  was
unconstitutional because it infringed on her property  rights  in
both  her land and her dogs.30  When a zoning ordinance infringes
on property rights we apply the minimum level of scrutiny,31 under
which the provision must bear a fair and substantial relationship
to  a  legitimate government purpose.32  Luper correctly concedes
that  the city has legitimate interests in controlling dog noise,
dog  odor and pollution, dog-caused disease, and loose dogs.  The
three-dog limit bore a fair and substantial relationship to those
purposes.  The relationship was substantial because having  fewer
dogs  effectively  and directly limited noise,  odor,  pollution,
health   risks,  and  the  potential  for  escaped   dogs.    The
relationship  was fair because it was reasonable  to  think  that
more  dogs  may  cause more nuisances, and the  ordinance  simply
imposed  an  additional requirement (obtaining a use  permit)  on
residents  who wished to have more than three dogs, shifting  the
burden  to the dog owner to prove that the additional dogs  would
not annoy or threaten the health or safety of the community.  The
city  did  not completely prohibit owning more than  three  dogs.
That  the  ordinances  three-dog limit can  be  characterized  as
numerically arbitrary does not mean that the ordinance itself was
constitutionally arbitrary.33  We therefore hold that the  former
three-dog limit was not unconstitutional.
          We AFFIRM the superior courts order affirming denial of
Lupers  use  permit  application.  We also  AFFIRM  the  superior
courts  final  judgment, entered upon summary  judgment  for  the
city, in the enforcement action.
     1     WMC 16.12.010 states that Section 16.20.020 includes a
use  chart describing the type of permit needed before initiating
a   use   of  land.   There  are  three  types  of  permit:   (1)
administrative  approval  (AA); (2)  use  permit  (UP);  and  (3)
conditional   use   (CU).    WMC  16.20.010   abbreviates   Rural
Residential  as  RR.   The  WMC  16.20.020  chart  contains   the
abbreviation  UP in the kennel/cattery row under the  RR  column.
Luper appears to concede that the municipal code required her  to
obtain a use permit to operate her kennel.

     2     Former  WMC  16.04.070, amended  by  City  of  Wasilla
Ordinance  Serial  No. 08-41 (Sept. 8, 2008).   The  current  WMC
16.04.070  imposes  a  four-dog limit,  defining  kennel  as  any
premises  used for breeding, buying, selling, keeping or boarding
five  or more dogs over the age of six months, whether for profit
or not.

     3     Griswold  v.  City of Homer, 55 P.3d  64,  68  (Alaska
2002);  Balough v. Fairbanks N. Star Borough, 995 P.2d  245,  254
(Alaska 2000).

     4    Griswold, 55 P.3d at 67; Balough, 995 P.2d at 254.

     5    Griswold, 55 P.3d at 67-68; Balough, 995 P.2d at 254.

     6    Balough, 995 P.2d at 254.

     7    See Griswold, 55 P.3d at 67; Balough, 995 P.2d at 254.

     8     Pasternak v. State, Commercial Fisheries Entry  Commn,
166  P.3d  904,  907  (Alaska 2007) (quoting  Simpson  v.  State,
Commercial  Fisheries  Entry Commn, 101  P.3d  605,  609  (Alaska

     9    Cragle v. Gray, 206 P.3d 446, 449 (Alaska 2009) (citing
Rockstad  v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005));  Larson
v.  Cooper, 90 P.3d 125, 128 n.3 (Alaska 2004); Balough, 995 P.2d
at 254.

     10    Jackson v. Kenai Peninsula Borough for Use & Benefit of
Kenai, 733 P.2d 1038, 1040 (Alaska 1987) (quoting Braund, Inc. v.
White, 486 P.2d 50, 54-55 n.6 (Alaska 1971)).

     11     Even though the hearing officer apparently considered
additional  evidence when Luper appealed the commissions  denial,
both  parties  on  appeal  assume  we  are  only  reviewing   the
commissions decision.

     12    WMC 16.16.040(A)(2)(b) states that notice of a hearing
must  be  published and must set out the time, date and place  of
the  hearing, the name of the applicant, the address  or  general
location of the property and subject or nature of the action.

     13     See, e.g., Groom v. State, Dept of Transp., 169  P.3d
626, 635 (Alaska 2007) (We have previously held that the crux  of
due  process  is  the opportunity to be heard and  the  right  to
adequately represent ones interests.  While the actual content of
the  notice is not dispositive in administrative proceedings, the
parties must have adequate notice so that they can prepare  their
cases.  (citing Matanuska Maid, Inc. v. State, 620 P.2d 182,  192
(Alaska  1980); North State Tel. Co. v. Alaska Pub. Util.  Commn,
522 P.2d 711, 714 (Alaska 1974))); City of Homer v. Campbell, 719
P.2d  683,  686-87 (Alaska 1986) (An elementary  and  fundamental
requirement  of  procedural  due  process  is  notice  reasonably
calculated,  under  all the circumstances, to  inform  interested
parties  of  action  affecting  their  property  rights.  (citing
Mullane  v. Cent. Hanover Bank & Trust, 339 U.S. 306, 314 (1950);
Aguchak v. Montgomery Ward Co., 520 P.2d 1352 (Alaska 1974))).

     14    Beegan v. State, Dept of Transp. & Pub. Facilities, 195
P.3d  134, 138 (Alaska 2008) (citing Johnson v. Alaska State Dept
of  Fish  &  Game,  836  P.2d 896, 906 (Alaska  1991))  (internal
brackets and quotation marks excluded).

     15    See Avery v. State, 616 P.2d 872, 873-74 (Alaska 1980)
(holding  no issue preclusion because burdens of proof materially
differed); see also Murray v. Feight, 741 P.2d 1148, 1155 (Alaska

     16     Lack  of annoyance was the dispositive issue  in  the
criminal case, WMC 07.04.030, but was not dispositive for the use
permit.  WMC 16.16.050, .060(J).

     17     Nor, contrary to Lupers contention on appeal, was the
commission required to give great deference to these findings  in
the  criminal  case; the commissions decision  was  supported  by
substantial evidence.

     18     Luper asserts that the findings are not supported  by
substantial  evidence because most of her dogs are debarked,  she
takes  the  dogs  outside  in groups to minimize  noise,  she  is
fastidious  about  dog cleanliness, one horse (for  which  a  use
permit is not required) produces more waste than all of her dogs,
her  lot is the lowest one in the area, and she does not  have  a
loose-dog problem.

     19    The record contains comments from at least twenty-seven
neighbors opposing the application on grounds of noise, odor, and
groundwater  contamination,  among other things.  Although  there
was  some  evidence  that  Lupers  lot  was  the  lowest  in  the
subdivision, four neighbors expressed concerns about  groundwater
contamination,   and  the  Alaska  Department  of   Environmental
Conservation  commented that runoff containing animal  waste  may
pose  health  risk  to adjoining property owners.   Despite  what
appear to be significant efforts to control both noise and  odor,
the   city  received  two  noise  complaints  about  Lupers  dogs
unrelated to the permit application.

     20    See WMC 16.16.050(A)(1), (11), (14).

     21     See  Pasternak v. State, Commercial  Fisheries  Entry
Commn, 166 P.3d 904, 907 (Alaska 2007) (When reviewing an agencys
interpretation  of  its own regulation, we apply  the  reasonable
basis standard.).

     22    See WMC 16.16.050, .060(J).

     23    WMC 16.16.050, .060(J).

     24     See  Jackson  v. Kenai Peninsula Borough  for  Use  &
Benefit of Kenai, 733 P.2d 1038, 1040 (Alaska 1987) (A plaintiffs
motion for summary judgment must prove not only every element  of
his  cause  of  action,  it  must also expressly  disprove  every
affirmative  defense  of the answer.  (quoting  Braund,  Inc.  v.
White, 486 P.2d 50, 54-55 n.6 (Alaska 1971))).

     25     Id.  at 1040-41 (citing Municipality of Anchorage  v.
Schneider, 685 P.2d 94, 97 (Alaska 1984)).

     26     Whaley  v.  State, 438 P.2d 718,  720  (Alaska  1968)
(holding  that any representation by state official contradicting
explicit provision of personnel rule would be unauthorized and of
no  effect,  and  therefore state was not estopped  from  denying
effect  to representation); see also Jackson, 733 P.2d  at  1041;
State v. Alaska Land Title Assn, 667 P.2d 714, 726 (Alaska 1983).

     27     Rollins v. State, Dept of Revenue, Alcoholic Beverage
Control  Bd.,  991 P.2d 202, 210 (Alaska 1999) (citing  Gates  v.
City of Tenakee Springs, 822 P.2d 455, 461 (Alaska 1991)).

     28     Two of the applicants were not similarly situated  to
Luper:  one  was  granted  a permit by a  different  entity  (the
borough  instead of the city) for only four dogs, and the  second
was granted a permit in a commercially zoned district.  The third
applicant was situated similarly to Luper but was denied a permit
in the same district as Luper.

     29    Rollins, 991 P.2d at 210.

     30    Luper does not clarify whether she is alleging a denial
of  substantive due process or of equal protection.  An ordinance
violates substantive due process if it does not bear a reasonable
relationship  to  a legitimate purpose.  Premera  Blue  Cross  v.
State,  Dept of Commerce, Cmty. & Econ. Dev., Div. of  Ins.,  171
P.3d 1110, 1124 (Alaska 2007).  Because an ordinance that bears a
fair   and  substantial  relationship  to  a  legitimate  purpose
necessarily also bears a reasonable relationship to a  legitimate
purpose,  id.  at  1124-25,  if we conclude  that  the  ordinance
satisfied  equal protection we do not need to separately  address
whether the relationship satisfied substantive due process.

     31     Barber  v. Municipality of Anchorage, 776 P.2d  1035,
1039-40 (Alaska 1989).

     32     Premera Blue Cross, 171 P.3d at 1122; Pub.  Employees
Ret.  Sys.  v.  Gallant,  153  P.3d 346,  349-50  (Alaska  2007).
Alaskas  standard  is more protective than the  federal  standard
because it requires that the relationship be fair and substantial
rather  than  merely rational.  Alaska Civil Liberties  Union  v.
State,  122  P.3d  781,  787 (Alaska 2005); Commercial  Fisheries
Entry  Commn  v. Apokedak, 606 P.2d 1255, 1261-62 (Alaska  1980).
An   ordinance  that  satisfies  the  state  standard   therefore
necessarily also satisfies the federal standard.

     33     See Holt v. City of Sauk Rapids, 559 N.W.2d 444,  446
(Minn.  App.  1997)  ([N]umbers chosen as legal  limitations  are
often   arbitrary:  e.g.,  speed  limits,  building   ordinances,
statutes  of limitation.  The necessity of selecting some  number
arbitrarily does not render an ordinance itself arbitrary.).

          In  any  event, Luper does not claim that the ordinance
arbitrarily  prevented her from owning one, two,  or  even  three
dogs  beyond  the former three-dog limit; she contends  that  she
should be allowed to keep at least eighteen dogs over the age  of
four  months.  On appeal she argues that there was no reason  she
should not be allowed to keep at least twenty dogs.

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