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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hillstrand v. City of Homer (10/30/2009) sp-6426
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
| NANCY J. HILLSTRAND, | ) |
| ) Supreme Court No. S- 13160 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-08- 4488 CIV | |
| v. | ) |
| ) O P I N I O N | |
| ) | |
| CITY OF HOMER, | ) No. 6426 - October 30, 2009 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Suddock, Judge.
Appearances: Ronald L. Baird, Anchorage, for
Appellant. Thomas F. Klinkner, Birch,
Horton, Bittner & Cherot, Anchorage, for
Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
WINFREE, Justice.
I. INTRODUCTION
A municipality sought land through eminent domain to
expand its water treatment plant. The property owner objected to
the taking because: it would close off an access route to her
remaining property; the municipality had not dedicated
replacement access in a binding way; and the municipality sought
a fee simple interest, rather than an easement, in the portion of
the land to be used as an undeveloped protective buffer for the
plant. The landowner also sought an order directing the
municipality to obtain final plat approval for the property by a
specific date. The superior court granted the municipalitys
requested taking without specifying a deadline for the final
plat. Because the superior court did not err in rejecting some
of the landowners objections as a matter of law and correctly
left the remaining objections for consideration during the
damages phase of the proceedings, we affirm the superior courts
decision in all respects.
II. FACTS AND PROCEEDINGS
A. Facts
In 2005 the City of Homer determined it needed to
expand its water treatment plant to meet federal drinking water
standards and to increase capacity for future needs. The City
wanted to construct a new building to house treatment-related
facilities adjacent to its existing plant. Nancy Hillstrand
owned in excess of one hundred acres in an adjoining parcel. The
City sought to take roughly four acres of land in the southwest
corner of Hillstrands parcel.
The City planned to use the four-acre parcel for the
construction of a new building which will house required water
treatment equipment, chemical storage, laboratory, and office
space; access improvements; septic system; water treatment sludge
dewatering facility; storm water treatment facilities; fencing;
and adjustments to the raw water pipeline from the . . .
Reservoir. The City also planned to create vegetative non-
disturbance buffers on that parcel as a shield between the new
facilities and Hillstrands remaining property.
The western boundary of Hillstrands property and the
eastern boundary of the Citys existing water treatment plant is a
section-line, with adjoining thirty-three foot wide section-line
easements on each property. A section-line easement is a
statutorily-created public right-of-way owned by the State of
Alaska.1 The section-line easement on Hillstrands property
contains a road-way known as Carter Drive, providing access from
Hillstrands parcel to a City road called Skyline Drive. Skyline
Drive crosses Hillstrands property at its southeastern corner,
but the majority of the parcel cannot be reached from this point
due to topographic features. Hillstrands property also abuts
certain public rights-of-way along its southern edge.
A fence surrounding the Citys existing water treatment
facility extends to the section-line, blocking the section-line
easement on the Citys property. The City would like to
completely fence the section-line easement when it acquires
Hillstrands four-acre parcel, cutting off Carter Drive and access
to Skyline Drive from the western portion of Hillstrands
remaining property. The City planned to dedicate a replacement
right-of-way, known as Nancy Place, running from Skyline Drive
through another City-owned parcel to the southern edge of
Hillstrands remaining property.
B. Proceedings
In December 2006 the City began negotiating with
Hillstrand to acquire the parcel. The City later received
preliminary approval from the City Planning Commission to acquire
the parcel. The City placed a preliminary replat for the
proposed taking on the Kenai Peninsula Borough Plat Committees
agenda for September 2007, but Hillstrand requested it be
removed. The City complied.
In January 2008 the City filed a complaint for
condemnation, a declaration of taking, and the decisional
document describing the need for the project and the chosen site.
The City sought a fee simple interest in 4.014 acres of
Hillstrands property, described in the complaint by metes and
bounds, and deposited $62,000 with the superior court as its
estimate of just compensation for the taking.
Hillstrand filed her answer and a motion to dismiss the
taking in March 2008. She asserted that the City had not
complied with the platting requirements of AS 09.55.275 and thus
details of replacement access to her remaining parcel had not yet
been legally determined. She also asserted that both the Citys
plan eliminating access through Carter Drive (along the section-
line easement) and its taking of a fee simple interest in the
land to be used as a vegetative buffer were unnecessary and
therefore impermissible. She requested that the Citys action be
dismissed or remanded to the City for compliance with AS
09.55.275 and that she be awarded costs and attorneys fees.
In April 2008 the City submitted a revised preliminary
replat to the Borough Plat Committee and requested an exception
to the Boroughs requirement that Carter Drive continue to be
dedicated as a public right-of-way.2 The Committee approved the
preliminary replat on May 12, 2008, but rejected the Citys
request to eliminate Carter Drive.
The superior court heard oral argument on Hillstrands
motion to dismiss on May 23, 2008. At that time Hillstrand also
sought a ruling that the City did not have authority to close off
the section-line easement (Carter Drive). The City asserted that
it was not taking the section-line easement and had not taken
action to vacate it. The City conceded that if the Borough
allowed it to close Carter Drive as a public right-of-way the
City would do so, but stated that it did not seek a court ruling
on the matter. The court ordered the take deed be amended to
describe the taken parcel by reference to the approved
preliminary plat rather than by metes and bounds, but otherwise
denied Hillstrands motion to dismiss. The court found that the
City had authority and necessity for the taking and granted the
City possession of the parcel.
Hillstrand moved for reconsideration, which the court
denied without comment. The court then denied Hillstrands
request for costs and attorneys fees.
Hillstrand appeals.
III. STANDARD OF REVIEW
Hillstrands arguments that AS 09.55.250 prohibits the
City from taking a fee simple interest in the land to be used for
a vegetative buffer and that AS 09.55.275 requires the City to
obtain approval of a final plat of the taken property by a
specific date present questions of statutory interpretation to
which we apply our independent judgment, adopting the rule of law
that is most persuasive in light of precedent, reason, and
policy.3 Her arguments that the superior court erred in not
ordering the City to decide whether it will close off Carter
Drive access and to definitively describe the type of replacement
access to be constructed also present questions of law under the
eminent domain statute which we review de novo.4 But in a
condemnation under a declaration of taking, we will set aside the
condemnors decision regarding the takings necessity only if it is
arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law. 5 We use our independent judgment in
interpreting the rules of civil procedure relating to attorneys
fees.6 A trial courts award of attorneys fees is reviewed for
abuse of discretion.7
IV. DISCUSSION
A. Eminent Domain Overview
The City commenced an action in eminent domain
accompanied by a declaration of taking.8 Condemnation under a
declaration of taking proceeds in two phases.
In the face of objections to the taking, the superior
court must determine whether the condemnor has legal authority to
take property for the proposed use,9 what kind of property
interest may be taken,10 and whether the taking is by necessity
for a public use or purpose in a manner compatible with the
greatest public good and the least private injury.11 The property
owner may object to authority and necessity for the taking by
filing a motion to dismiss under Civil Rule 72(h)(2)(A); but if
the court finds that authority exists and the condemnors
reasoning is not arbitrary, title to the land, received upon
filing the declaration of taking,12 may not be divested.13 A
ruling on authority and necessity is a final judgment that may be
appealed.14
The court then begins proceedings to determine just
compensation for the property taken.15 Just compensation may
include compensation for a landowners loss of access to the
network of city streets because an owner of abutting land has a
right of access to and from a public street or highway.16 The
scope of this right is limited to a right of reasonable access. 17
B. The Trial Court Did Not Err in Declining To Order the
City To Complete a Final Plat or To Define the
Parameters of Replacement Access to Hillstrands
Remaining Property.
Hillstrand moved to dismiss the Citys taking for lack
of authority and necessity pursuant to Rule 72(h)(2)(A). The
superior court denied her motion, and she appeals that ruling on
two distinct but related grounds. She argues that the court
erred by not ordering the City to complete a final plat by a
specific date under AS 09.55.275. She also argues that the court
erred by not ordering the City to describe in its declaration of
taking the type of replacement access it intended for the new
Nancy Drive. She contends the court must compel these actions so
the City cannot later avoid its obligation to compensate her for
the loss or increased cost of access. The City argues that the
superior court correctly reserved the issue of access to the
Remnant Parcel to the Borough plat approval process . . . and the
compensation phase of the eminent domain action.
The superior court did not err by refusing to order the
City to complete a final plat by a specific date. The platting
statute, AS 09.55.275, does not require the condemning authority
to replat affected properties at any specific point in the
takings process, and Hillstrands rights of replacement access
will be appropriately considered in the later compensation
proceedings.
Before 2004 AS 09.55.275 expressly required a condemnor
to obtain preliminary approval of a replat before acquiring land
through eminent domain:
No agency of the state or municipality may
acquire property located within a
municipality . . . which results in a
boundary change unless the agency or
municipality first obtains from the municipal
platting authority preliminary approval of a
replat showing clearly the location of the
proposed public streets, easements, rights-of-
way, and other taking of private property.
Final approval of replat shall be similarly
obtained. . . . The platting authority shall
treat applications for replat made by state
or local governmental agencies in the same
manner as replat petitions by private
landowners.[18]
In 2002 we decided Municipality of Anchorage v. Suzuki,19 in which
landowners argued that the municipality taking their property
was required to obtain preliminary replat approval because the
condemnation of an easement across their land was a boundary
change within the meaning of AS 09.55.275.20 We agreed and
affirmed the superior courts ruling that the municipality was
required to apply for a replat in a short period of time.21
In 2004 the legislature amended AS 09.55.275 to read as
follows:
An agency of the state or municipality
acquiring property in fee that results in a
boundary change . . . shall conform to this
section by obtaining preliminary approval of
a replat showing clearly the location of the
proposed public street or other acquisition
of property. The platting authority may
establish applicable review procedures and
standards for a replat made for the purpose
of a right-of-way acquisition or
condemnation. Neither the adequacy of the
municipal replat process or standards, if
any, nor the failure of a municipality to
follow its own replat process and standards
shall deprive the state of the authority to
exercise its power of eminent domain. Final
approval of replat shall also be obtained.[22]
The legislature eliminated the language making preliminary replat
approval an express precondition to a taking. Although obtaining
preliminary and final replat approval is still mandatory, it is
not a precondition for a taking and there is no express deadline
for final replat approval.
The legislatures stated purpose in revising AS
09.55.275 was:
to confirm the municipal role in eminent
domain proceedings, including the right of
municipalities to regulate remnant parcels,
while at the same time clarifying that that
role is not intended to require the same
substantive review or procedures for review
of replats for the acquisition of property by
the state or a municipality as required in
replats for private landowner subdivisions or
zoning reviews.[23]
Considering together: (1) AS 09.55.275s stated purpose of
facilitating municipal land use regulation; (2) the 2004
revisions purpose of diminishing procedural hurdles to the
condemnors ability to take property; and (3) the elimination of
language requiring the condemnor to obtain replat approval before
taking property, we conclude that AS 09.55.275 does not require
the condemnor to obtain final replat approval at a specific point
in the taking process. The superior court therefore did not err
in refusing to order the City to obtain plat approval by a
specific date.
Hillstrand argues that the superior court: (1) must
order the City to obtain final plat approval by a specific date
so it cannot avoid dedicating replacement access to the remnant
parcel; and (2) should have ordered the City to definitively
describe the type of replacement access to be constructed. She
contends that if the City requires her to construct a paved road,
the cost to her will be much greater than if the City allows her
to maintain only a dirt path. But the issues of replacement
access to the remnant parcel are more appropriately considered in
subsequent proceedings to determine just compensation.
If the taking eliminates reasonable access to the road
network, then this aspect of the taking will be compensable and
an element of the compensation owed to Hillstrand.24 If
Hillstrand still retains reasonable albeit more circuitous access
despite the taking, she will not be compensated for this
inconvenience.25 What replacement access Hillstrand may have and
whether her access to city streets is reasonable following the
taking are more appropriately considered at compensation
proceedings than in the current proceedings to determine the
Citys authority and necessity for the taking.26
C. The Superior Court Did Not Err in Declining To Rule
that the City Cannot Close Carter Drive.
Hillstrand argues that the superior court should have
barred the City from closing off Carter Drive access. She
acknowledges that the Borough and the State have opposed closing
Carter Drive and have required the City to dedicate it as a
public right-of-way. But Hillstrand fears that if the Borough
and State later agree to close Carter Drive she will be deprived
of Skyline Drive access without compensation for the loss. She
therefore sought a definitive answer on Carter Drives status:
she wanted the court to either rule that the City cannot block
access or order the City to determine whether the Borough and
State will consent to closing it.
The superior court did not err in declining Hillstrands
request because access to Carter Drive is not an element of the
Citys taking. A section-line easement is a statutorily-created
public right-of-way owned by the State27 and is a property
interest distinct from the condemned portion of Hillstrands
property.28 The Citys complaint for condemnation and its
declaration of taking proposed condemning Hillstrands fee
interest in the four-acre parcel on which the section-line
easement sits, not the easement itself. The City cannot vacate
the section-line easement without following specific
administrative procedures,29 and the State, not the City, has
authority to decide whether a section-line easement may be
vacated.30 Despite the Citys stated desire to close off access to
Carter Drive, its declaration of taking and its decision not to
undertake proceedings under 11 AAC 51.065 make clear that closing
Carter Drive is not at issue in this proceeding.31 The superior
court did not err in declining to decide whether closing Carter
Driver is necessary to the City or whether the Borough and State
ultimately will consent to closing it.
D. The Superior Court Did Not Err in Approving the Taking
of Land in Fee for a Vegetative Buffer.
The Citys plan for the parcel taken from Hillstrand
includes vegetative non-disturbance buffers fifty feet deep on
the northern, eastern, and southern boundaries of the taken
parcel. During the initial purchase negotiations for the parcel,
Hillstrand requested a 110-foot buffer between the taken parcel
and her remainder parcel. The decisional document notes that
Hillstrands stated purpose of requesting non-disturbed areas on
the north, east and southern boundaries is to buffer the
remaining parcel from activities that occur at a public water
treatment plant. The City rejected Hillstrands request to take
only 2.54 acres in fee and the remaining land for the buffer as
an easement; the City instead decided to take the entire 4.014
acres in fee.
The superior court ruled that the City had legal
authority to take the buffer area in fee and that the buffer area
was necessary to the Citys project. Hillstrand argues that the
court erred because: (1) the depth of the buffer, fifty feet, is
arbitrary; (2) the Citys decision to take a fee interest rather
than an easement for the buffer is arbitrary; and (3) land for a
vegetative buffer may not legally be taken in fee under AS
09.55.250.
1. The buffers size is not arbitrary.
1. When a condemnor takes property with a declaration of
taking, the declaration must include a statement that the
property is taken by necessity for a project located in a manner
that is most compatible with the greatest public good and the
least private injury.32 Upon the property owners objection,33 the
court may divest the condemnor of title to the property if it
finds this is not so.34 Striking the ultimate balance is . . . a
decision to be made by the condemnor. A court should not
substitute its judgment for that of the condemnor, but may set
aside the condemnors decision if it is arbitrary, capricious, and
abuse of discretion, or otherwise not in accordance with law. 35
The [condemnors] determination of the least private injury and
the greatest public good must be a rational one, and . . . a
decision must be considered arbitrary where the condemnor has
failed to consider all important, relevant factors in making a
determination.36 Hillstrand does not object to the project as a
whole, but contends that the buffers depth and the Citys decision
to take the underlying land in fee are arbitrary.
The Citys decisional document does not directly explain
why the proposed buffer is fifty feet deep, and thus its depth
may appear arbitrary when considered in isolation. When
considered in the context of the entire parcel, especially in
light of Hillstrands original request for a buffer depth of 110
feet to preserve the lands appearance from the road and to
minimize light pollution from the facility, the justification
becomes more apparent.
The Citys decisional document states that the City
originally intended to take a larger parcel of land to conform to
zoning regulations designed to protect the watershed in which the
parcel sits. These regulations require that no parcel less than
4.5 acres be created and that total impermeable surfaces not
exceed 4.2 or 6.4 percent of the lot area.37 Although the Citys
water utility is exempt from these requirements,38 the City
nonetheless stated a desire to conform to them, a reasonable
objective for an entity concerned with and dependent upon
watershed health. But due to Hillstrands concerns about the size
of the parcel to be acquired, the City reduced the requested take
to what is considered minimum (4.014 acres). Although the
decisional document does not directly address the buffers depth,
it is a function of the size of the parcel taken, the necessity
of which is adequately supported in the record.
2. The Citys decision to take land in fee for the buffer is not
arbitrary.
1. Hillstrand also argues the Citys decision to take land for
use as a vegetative buffer in fee, rather than by easement, is
arbitrary.
A condemnor must consider all important, relevant
factors in making its determination.39 Hillstrand desired a
buffer to minimize the impact of the plants activities on her
remnant parcel (an aim equally well-served by a fee or an
easement). In its decisional document the City observed that
Hillstrand sought an easement that would exclude permanent
structures but allow future roads to be built in the buffer. It
also observed that maintaining an easement on private lands would
place an additional burden on the City, noting that Hillstrand
demanded the City bear the cost of maintaining the buffer and
concluding the only practical and cost-effective way the City can
adequately control development within the buffer areas is to own
the buffers. The City therefore considered all the relevant,
important factors: the long-term cost and burden of each
alternative40 and the extent to which each alternative would
further its and Hillstrands primary goals41 respectively,
controlling development and protecting the remnant parcel from
disturbances. It was not error for the superior court to
conclude that the Citys decision to take the buffer area in fee
is not arbitrary.
3. Alaska Statute 09.55.250 does not prohibit the City from
taking a fee interest in land to be used as a vegetative buffer
in this context.
Hillstrand argues that the superior court erred in
concluding that the Citys taking of the land in fee to be used
for a vegetative buffer, rather than restricting the City to an
easement, complied with AS 09.55.250. She contends that AS
09.55.250, which limits the property interest a condemnor may
take for certain purposes, does not allow land to be taken in fee
for the buffer.
Alaska Statute 09.55.250 provides, in relevant part:
The following is a classification of the
estates and rights in land subject to be
taken for public use:
(1) a fee simple, when taken for public
buildings or grounds, or for permanent
buildings, for reservoirs and dams and
permanent flooding occasioned by them, or for
an outlet for a flow, or a place for the
deposit of debris or tailings of a mine . . .
;
(2) an easement when taken for any other use
. . . .
Although public buildings to house water treatment facilities
will be erected on the taken parcel, Hillstrand contends that
because no buildings or other structures will be erected and no
public activities allowed on the portion used for a vegetative
buffer, that portion of the parcel is not taken for public
buildings or grounds; therefore, she argues, the City may take
only an easement.
Hillstrand relies on our decision in Williams v. City
of Valdez.42 There we stated that statutes authorizing the
exercise of eminent domain are to be strictly construed against
the condemnor, and applied that principle to statutory
declarations with respect to the extent of the interest which is
to be acquired.43 In Williams we interpreted the phrase an outlet
for a flow in AS 09.55.250 to refer only to the flow of tailings
or refuse matter from mines in light of the text both of that
provision and of AS 09.55.240(5).44 We thus concluded the city
did not have authority to take a fee in land used for a drainage
ditch unrelated to mining.45 Hillstrand essentially argues that
we should not only strictly construe AS 09.55.250 as to the type
of use for which a fee may be taken, as we did in Williams, but
that we also should divide a proposed use into various components
and determine whether each individual component is a use
enumerated in AS 09.55.250 for which a fee may be taken.
We decline to adopt this approach because the text of
AS 09.55.250 does not require it. It permits the taking of a fee
simple, when taken for public buildings or grounds.46 This
provision might be interpreted so that land is used for public
buildings only when it lies directly underneath the four corners
of the building itself; all adjacent lands would then have to be
taken as easements. A more natural interpretation is that land
is used for public buildings when it supports either the building
or subsidiary features reasonably necessary to serve its purpose,
such as access, parking, landscaping, space for light and air,
and security. The former interpretation gives rise to several
problems the latter avoids: irregularly-shaped takings,
interference with the condemnors public buildings due to less-
than-full ownership of adjacent land, and the difficulty of
selling the taken parcel should the public use cease at some
point in the future.47
Although we know of no decisions directly addressing
the question posed here,48 we observe that when determining what
kind of interest in land may be condemned, courts scrutinize the
proposed use as a whole rather than dividing it into individual
components. For example, the North Dakota Supreme Court ruled
that a city had obtained a fee interest in land for an airport
under a statutory provision identical to AS 09.55.250(1) because
an airport falls within [the statute] as public buildings or
grounds, for which the statute expressly authorized acquisition
of a fee simple.49 The California Supreme Court ruled that former
California Civil Procedure Code section 1239, which permitted
taking a fee for reservoirs and dams, and permanent flooding
occasioned thereby,50 authorized the city of Los Angeles to take
land in fee for a subterranean reservoir without separately
analyzing whether a fee might be taken for a main feature of the
project, a tunnel draining and filtering the saturated soil and
delivering the water to the citys supply pipes.51 That an airport
is comprised of runways as well as hangars and terminals, and
that a reservoir contains land used for purposes other than
actual water storage, has not led courts to limit the taking of a
fee to only certain components of those projects.
In light of the text of AS 09.55.250, the approach
indicated in the decisions of other courts, and the policy
implications involved, we hold that when a condemnor takes land
for a public building, land may be taken in fee for subsidiary
features, so long as those features are reasonably necessary to
accomplish the condemnors purpose.52
We recognize that in some cases a challenged project
feature may be a use so distinct from the building itself that
the land taken for it cannot be said to be a subsidiary feature
of a public building, but rather is an independent use.53 In this
case, however, the vegetative buffer is closely intertwined with
the function and purpose of the water treatment plant. It
protects the health of the watershed on which the Citys drinking
water depends by maintaining the taken parcels proportion of
impermeable surface at the recommended level. It also minimizes
the negative effects on adjacent lands of an unsightly industrial
use. Although these concerns may seem overstated given the
remnant parcels current undeveloped state, they may well prove
prescient should further subdivision and development take place
in the area. A buffer of this sort may not be a subsidiary
feature reasonably necessary to carry out the purpose of every
public building, but we are satisfied that it is for the Citys
water treatment plant. It was not error to allow the City to
take the entire 4.014 acre-parcel in fee.
D. The Superior Court Did Not Err in Declining To Award
Hillstrand Attorneys Fees.
Hillstrand argues that she was entitled to an award of
attorneys fees under subsections (k)(1) and (k)(5) of Civil Rule
72. These provisions of Rule 72 respectively provide that costs
and attorneys fees incurred by a defendant in eminent domain
proceedings must be assessed against the condemnor if the taking
of the property is denied54 or if allowance of costs and fees
appears necessary to achieve a just and adequate compensation of
the defendant.55 The superior court denied Hillstrands motion for
costs and fees.
Hillstrand argues that because (1) the court ordered
the City to amend the declaration of taking to incorporate the
preliminary plat description in lieu of the metes-and-bounds
description and (2) the platting process will result in
dedication of new access to the remainder parcel and in rejection
of the Citys plan to close off another right-of-way, the Citys
taking as originally proposed was denied.
The superior court did not abuse its discretion in
denying Hillstrand attorneys fees. It ruled favorably to her
only in ordering the City to amend its declaration of taking to
describe the taken parcel by reference to the approved
preliminary plat. This amendment resulted in no substantive
change to the scope of the taking approved by the court.56
Although the Borough refused the Citys request to fence off
Carter Drive, that access was not an element of the taking and
was therefore not denied by the court. The court rejected
Hillstrands plea to limit part of the taking to an easement,
Hillstrand did not obtain any greater right to replacement access
than the City planned to give her at the actions commencement,
and the court granted the Citys motion for possession. None of
Hillstrands objections were found valid by the trial court, and
no part of the taking was denied. It was therefore not an abuse
of discretion to deny her attorneys fees under Rule 72(k)(1).
Hillstrand argues that she is entitled to attorneys
fees under Rule 72(k)(5) because replacement access was important
to her and her fees incurred in forcing the City to plat the
property were necessary to achieve a just and adequate
compensation. However the record makes clear that the City
originally intended to provide replacement access to the remnant
parcel, and were it not for Hillstrands objections the City would
have submitted a preliminary plat for approval earlier.
Accordingly the superior court did not err in concluding that
awarding Hillstrand attorneys fees was not necessary to achieve a
just and adequate compensation.
V. CONCLUSION
The superior courts decision is AFFIRMED.
_______________________________
1 See AS 19.10.010 (A tract 100 feet wide between each
section of land owned by the state, or acquired from the state,
and a tract four rods wide between all other sections in the
state, is dedicated for use as public highways. The section line
is the center of the dedicated right-of-way.).
2 The City sought an exception to a Kenai Peninsula
Borough provision requiring that [t]he streets provided on the
plat must provide for the continuation or appropriate projection
of all streets in surrounding areas and provide reasonable means
of ingress for surrounding acreage tracts. Kenai Peninsula
Borough Code (KPBC) 20.20.030.
3 Municipality of Anchorage v. Suzuki, 41 P.3d 147, 150
(Alaska 2002) (quoting Muller v. BP Exploration (Alaska) Inc.,
923 P.2d 783, 787 (Alaska 1996)) (internal quotation marks
omitted).
4 Id.
5 State, Dept of Transp. & Pub. Facilities v. 0.644
Acres, More or Less, 613 P.2d 829, 833 (Alaska 1980) (quoting
Moore v. State, 553 P.2d 8, 34 n.12 (Alaska 1976)); see also
State, Dept of Transp. & Pub. Facilities v. 2.072 Acres, More or
Less, 652 P.2d 465, 466 (Alaska 1982); Arco Pipeline Co. v. 3.60
Acres, More or Less, 539 P.2d 64, 68-69 (Alaska 1975).
6 See R & Y, Inc., v. Municipality of Anchorage, 34 P.3d
289, 300 (Alaska 2001) (citing Bobich v. Hughes, 965 P.2d 1196,
1197 (Alaska 1998) and D.L.M. v. M.W., 941 P.2d 900, 902 (Alaska
1997)).
7 Res. Invs. v. State, Dept of Transp. & Pub. Facilities,
687 P.2d 280, 283 (Alaska 1984) (citing Badger Constr. v. State,
628 P.2d 921, 924 (Alaska 1981)).
8 See AS 09.55.240; AS 09.55.420-.460.
9 See AS 09.55.240; AS 09.55.430(1).
10 See AS 09.55.250.
11 See AS 09.55.430(7) & AS 09.55.460(b).
12 See AS 09.55.440(a).
13 See AS 09.55.460(b).
14 Alaska R. Civ. P. 72(h)(2)(E).
15 See AS 09.55.440(a); Alaska R. Civ. P. 72(h)(2)(A),
(h)(3)-(6). The court appoints a master to hear evidence and
determine the amount of compensation owed. Alaska R. Civ. P.
72(h)(3)(A); AS 09.55.310. The parties may obtain a jury trial
on the compensation issue either by waiving appointment of a
master or by appealing the masters award. AS 09.55.320; Alaska
R. Civ. P. 72(h)(3)(B), (h)(5)-(6).
16 Triangle, Inc. v. State, 632 P.2d 965, 967 (Alaska
1981) (citing Annot., 42 A.L.R.3d 13 (1972)).
17 Id. (quoting B & G Meats, Inc. v. State, 601 P.2d 252,
254 (Alaska 1979)).
18 AS 09.55.275 (2003); ch. 96, 2, SLA 1975.
19 41 P.3d 147 (Alaska 2002).
20 Id. at 149.
21 Id. at 150. The superior court had found that applying
the replat requirement retroactively would cause undue hardship
by jeopardizing funding and raising costs and thus did not
dismiss the taking. Id.
22 AS 09.55.275; ch. 32, 2, SLA 2004.
23 Ch. 32, 1, SLA 2004.
24 Triangle, 632 P.2d at 967 (citing B & G Meats, 601 P.2d
at 254).
25 Id. at 968.
26 Hillstrand relies on two cases from other
jurisdictions, Peebles v. Canal Authority, 254 So. 2d 232 (Fla.
App. 1971), and Gluckman v. New York, 37 A.D.2d 870 (N.Y. App.
1971), but these cases actually support the Citys position. In
Peebles and Gluckman, the condemnor seized property and
informally promised the landowners access through the taken
parcel to, respectively, lakefront and an industrially-zoned
district. 254 So. 2d at 233; 37 A.D.2d at 870-71. The
compensation awarded in each case was calculated on the
assumption that the landowner would have the promised access.
Peebles, 254 So. 2d at 233; Gluckman, 37 A.D.2d 870-71. The
reviewing courts vacated the awards and remanded for
recalculation of compensation because, as the Peebles court
explained, [P]rivileges in the property taken . . . the enjoyment
of which is not compatible with the exercise of the title taken
. . . by the condemning authority, cannot be considered in
awarding compensation unless they are formally established by the
condemnation proceeding. 254 So. 2d at 233. Neither decision
required the condemnor to legally dedicate the access promised;
they held merely that a non-binding promise of a valuable access
route did not diminish the amount of compensation owed because
the condemnor could break the promise at any time. See Peebles,
254 So. 2d at 232; Gluckman, 37 A.D.2d 870.
27 See AS 19.10.010.
28 0.958 Acres, More or Less v. State, 762 P.2d 96, 100
(Alaska 1989) ([W]hen the state condemns the fee interest in land
in which it owns a section line easement . . . it owes no
compensation for the loss of access to the easement, since no
preexisting right was taken.).
29 11 Alaska Administrative Code (AAC) 51.025(b) (2008)
(Whether reserved by the department [of natural resources] or
granted to the state, a section-line easement continues to exist
unless and until it is vacated under 11 AAC 51.065, regardless of
whether that easement is in use.). Hillstrand argues that
condemnation of property automatically extinguishes all easements
in the property, but she cites only cases involving easements
owned by private parties. See Thomas Gang, Inc. v. New York, 19
A.D.3d 861 (N.Y. App. 2005); Wolff v. Secy of the S. Dakota Game,
Fish & Parks Dept, 544 N.W.2d 531, 536 (S.D. 1991). Even if that
rule were applicable to state-owned easements generally (an issue
we do not address), 11 AAC 51.025 supplants it with respect to
section-line easements.
30 See 11 AAC 51.065 (establishing procedures and
standards for decision by Department of Natural Resources to
vacate section-line easements).
31 We note, however, that in the event the State vacates
the section-line easement and the City closes Carter Drive after
compensation in these proceedings, Hillstrand is not without a
remedy. She could then sue for compensation for the taking of
her access to the road system. Triangle, 632 P.2d at 967.
32 AS 09.55.430(7).
33 AS 09.55.450(a).
34 AS 09.55.460(b).
35 0.644 Acres, More or Less, 613 P.2d at 833 (quoting
Moore 553 P.2d at 34 n.12 ).
36 2.072 Acres, More or Less, 652 P.2d at 466-67 (quoting
0.644 Acres, 613 P.2d at 832-33) (internal citation omitted).
37 Homer City Code 21.40.070(a), (c).
38 Homer City Code 21.40.070.
39 2.072 Acres, 652 P.2d at 467.
40 Hillstrand argues the City never estimated the value of
an easement even in a preliminary fashion. The cost of an
easement depends on the costs of both acquiring and maintaining
it. Given Hillstrands demand for the same amount of compensation
for the taking of an easement as for the taking of fee and the
possibility of future development adjacent to those lands, the
Citys decision is not unreasonable.
41 Hillstrand also argues the City overlook[ed] the
benefits she might obtain if it took only an easement. However,
the only benefit she notes is that she might use the area much
the same way as a yard. Given the large amount of undeveloped
property in the surrounding area that could be enjoyed this way
and the limited activity consistent with the Citys use that could
take place in the buffer area, the practical benefit to
Hillstrand of the City taking an easement rather than a fee is
minimal in this regard. The Citys failure to expressly mention
this factor does not render the Citys decision arbitrary.
42 603 P.2d 483 (Alaska 1979).
43 Id. at 491 (quoting 3 J. SACKMAN, NICHOLS ON EMINENT
DOMAIN 9.2(1), at 9-15 (1978 & 1979 Supp.) (internal quotation
marks omitted)).
44 Id.
45 Id.
46 AS 09.55.250.
47 Selling taken parcels might be more difficult if
condemnation of a fee were limited to land directly underlying
the edifice because under the law of eminent domain, ownership of
a condemned easement generally reverts to the original owner if
the public use for which it was condemned ceases. 3 J. SACKMAN,
NICHOLS ON EMINENT DOMAIN 9.04(3)(c)(i) (3d ed. 2006) (The mere
discontinuance of a public easement does not necessarily
establish a right to reverter. As a rule, if the public use is
subsequently discontinued or abandoned, the public easement is
extinguished, and the possession of the land reverts to the owner
of the fee free from any rights in the public.).
48 The California Supreme Court encountered this issue in
Crockett Land & Cattle Co. v. American Toll Bridge Co. of
California, 295 P. 328 (Cal. 1931), when a man whose land was
condemned for construction of the Carquinez Bridge argued he had
the right to occupy land underneath the span of the bridge
because under former Cal. Code Civ. P. 1239, which permitted the
taking of a fee simple, when taken for public buildings or
grounds, or for permanent buildings, the condemnor was permitted
to take only an easement for that land. The court did not
address this question, holding that regardless of whether a fee
or easement had been taken the bridge owner was entitled to
exclusive occupancy of the land. Crockett Land & Cattle Co., 295
P. at 330.
49 State ex rel. Bd. of Univ. & Sch. Lands v. City of
Sherwood, 489 N.W.2d 584, 589 (N.D. 1992) (citing N.D. Rev. Code
32-1503(1) (1943)).
50 Former Cal. Code Civ. P. 1239 permitted taking of a
fee simple, when taken for public buildings or grounds, or for
permanent buildings, for reservoirs and dams, and permanent
flooding occasioned thereby . . . . It has since been superseded
by Cal. Code Civ. P. 1240.110, which provides [e]xcept to the
extent limited by statute, any person authorized to acquire
property for a particular use by eminent domain may exercise the
power of eminent domain to acquire any interest in property
necessary for that use . . . . 1975 Cal. Stat. 3413.
51 City of Los Angeles v. Pomeroy, 57 P. 585, 587, 591
(Cal. 1899). The city sought to condemn a 315-acre tract in the
San Fernando Valley, where the Los Angeles River flowed as a
subterranean stream until surfacing further south, closer to the
city. The city sought to build an underground dam and create a
subterranean reservoir, drawing water from the saturated soils
using an underground tunnel and then piping the water to the city
for municipal use. Id. at 586-87.
52 We express no opinion on the meaning of the term
grounds in AS 09.55.250s authorization of a fee for public
buildings or grounds.
53 Thus a stretch of highway leading to an airport may not
be a subsidiary feature of the airport itself, but rather an
independent use; the taking of land for the highway would usually
need to independently satisfy statutory requirements, including
that of AS 09.55.250.
54 Alaska R. Civ. P. 72(k)(1).
55 Alaska R. Civ. P. 72(k)(5).
56 The superior court ordered the amendment because its
appropriate that the take deed be expressed in the modern
vernacular rather than the archaic vernacular. The court stated:
[Hillstrand] has asked me to say that Im not approving something
other than what the plat approves and thats, of course, true so
Ill make that express. Thats a part of the process that I am a
stranger to and I take no position. The declaration of takings
description of the property need only be sufficient for the
identification of it, AS 09.55.430(3), so that the court may
determine the authority for and necessity of taking it.
Proceedings before the Plat Committee may affect rights in the
taken and remnant parcels in some way e.g., regarding utility
easements or street access regardless of whether the taken
parcel is described by metes and bounds or by reference to the
preliminary plat. The form of the description has no effect on
the scope of the taking at issue in this stage of the eminent
domain proceedings.
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