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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

Hillstrand v. City of Homer (10/30/2009) sp-6426, 218 P3d 685

     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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