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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lundgren v. City of Wasilla (11/6/2009) sp-6429

Lundgren v. City of Wasilla (11/6/2009) sp-6429

     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- 13108
) Superior Court No. 3AN-02- 13590 CI
v. )
) O P I N I O N
CITY OF WASILLA, an Alaskan) No. 6429 - November 6, 2009
municipal corporation,)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:   Steven  S.  Tervooren,  Hughes
          Pfiffner   Gorski  Seedorf  &   Odsen,   LLC,
          Anchorage,  for  Appellant.  Gregory  Miller,
          Birch,  Horton, Bittner & Cherot,  Anchorage,
          for Appellee.

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

          WINFREE, Justice.

          A   landowner  challenged  a  municipalitys  delay   in
replatting  and  providing an accurate legal description  of  the
land it took using its power of eminent domain, alleging that  it
unnecessarily interfered with his remainder property rights.   As
a  remedy the landowner requested that the superior court dismiss
the    previously   approved   taking   without   prejudice   or,
alternatively,  change the valuation date  for  determining  just
compensation.   The superior court denied this  motion.   Because
the  superior court did not err in denying the landowners motion,
we affirm its decision.
          In  December  2002, as a part of its plan to  construct
certain  roads,  railroad crossings, a  sports  complex,  and  an
expansion of the Wasilla Airport, the City of Wasilla commenced a
taking  of  nine parcels of land belonging to Gary Lundgren.   In
January  2003  the City gave notice that it intended  to  dismiss
three of the parcels from its declaration of taking and from  its
eminent domain complaint.1
          In  March  2003 the superior court concluded  that  the
City had established both the required authority and necessity to
effect a taking of the remaining six parcels.  The superior court
ordered that title and possession to the six parcels be vested in
the City; Lundgren did not appeal from this final judgment.2  The
court  retained  jurisdiction to adjudicate the  amount  of  just
compensation for both the six parcels taken and the three parcels
temporarily taken.  In October 2006 the superior court  appointed
a special master to determine the compensation due Lundgren.
          In  December  2006  Lundgren  filed  a  motion  seeking
alternative  relief: a dismissal of the taking without  prejudice
or  a  ruling that valuation should be based not on the  date  of
taking but rather on a later date.  Lundgren argued that the City
had  violated  AS  09.55.275 by leaving  him  with  an  otherwise
unlawful,  un-platted  remainder  noting that  after  filing  the
declaration of taking the City did not receive preliminary replat
approval  for  seven months or record a final  replat  for  three
years.3  The superior court denied the motion in June 2007.
          Also  in  June  2007  the special  masters  report  was
issued, identifying both the December 2002 date for the permanent
taking, and an initial temporary taking of the three parcels from
that  same date through February 2, 2004 (when the court formally
approved the removal of the three parcels from the taking).   The
special master also noted a secondary temporary taking for two of
the  three parcels lasting from February 2, 2004, through May  1,
2007.   The  special  master explained his finding  of  a  second
temporary  taking  by emphasizing that the  City  had  failed  to
provide  a  proper plat of survey reflecting these parcels,  such
that  it was impossible for the property owner to dispose of  the
land  or  survey  the parcel himself since the City  was  in  the
process of platting the land and there were discrepancies in  the
          In  October  2007  the City paid the entire  amount  of
compensation indicated in the special masters report, as well  as
prejudgment interest.  In April 2008 the superior court issued  a
stipulated  final judgment confirming that:  (1) the  City  would
pay  Lundgren attorneys fees under Alaska Rule of Civil Procedure
72(k);  (2) platting authority rested with the Borough  and  that
the  final  replat was in conformity with the courts  order;  and
(3)  title  to the six parcels (as described in an attachment  to
the final judgment) was fully vested in the City.
          Lundgren  appeals only one issue:  the superior  courts
denial  of  his  December  2006  motion  for  dismissal   or   an
alternative valuation date.
          We apply our independent judgment to the interpretation
of  statutes and to our review of the superior courts rulings  of
law.4   We  review  questions  of  constitutional  law  de  novo,
adopting  the  rule of law that is most persuasive  in  light  of
precedent, reason, and policy.5
          We  recently provided an overview of the eminent domain
process  in Hillstrand v. City of Homer6 and we do not repeat  it
here.   We  simply  note  that:  (1) the process  occurs  in  two
phases;  (2)  in  the first phase the superior  court  determines
whether  the  condemnor had authority to take  the  property  and
whether the taking was necessary; and (3) in the second phase the
superior court determines the appropriate compensation to be paid
for the taking.7
          At  oral  argument before this court Lundgrens attorney
rightfully conceded that the actual taking of Lundgrens  property
occurred  in  December  2002.   This  inescapably  leads  to  the
conclusion  that  the  superior court  did  not  err  in  denying
Lundgrens  motion for a dismissal of the taking or an alternative
valuation date.
          First,   the   superior   court   overruled   Lundgrens
objections  to  the taking in March 2003, and  Lundgren  did  not
appeal that decision.8  The superior court vested legal title  in
the City at that time,9 and subsequent construction of the sports
complex  and related facilities established actual,  as  well  as
legal,  possession.  Rule 72(i)(3) provides that a court may  not
dismiss  the action as to any part of the property of  which  the
plaintiff  has taken possession or . . . title . .  .  but  shall
award  just compensation.  The superior court therefore  did  not
err in denying Lundgrens December 2006 request for a dismissal of
the taking.
          Second, Alaska law provides that the valuation date for
a  taking is the date of the issuance of the summons,10 which  in
this  case  was in December 2002.  We have held this  rule  valid
under  the  Alaska Constitution,11 and the United States  Supreme
Court also has held that just compensation is best determined  on
the date of appropriation.12  The superior court therefore did not
err  in  denying  Lundgrens request for an alternative  valuation
          We  note that Lundgren was not without a remedy for the
alleged  interference  with his remainder  property  rights.   He
could  have  pursued additional temporary taking or  interference
damages,  such  as  those  awarded  by  the  special  master   to
compensate  for the second temporary taking of two of  his  other
three  parcels.  Although our recent opinion in Hillstrand  makes
clear  that the current statutes governing eminent domain do  not
establish timelines or deadlines for required plattings,13 we see
no  reason  why a claim for compensation for a temporary  taking,
such  as  that awarded by the special master for the  failure  to
timely   file   a   replat,  would  be  unsustainable.    Further
compensation in this case might well have been appropriate  on  a
showing  that  the  City unreasonably interfered  with  Lundgrens
remainder  property rights in a manner that was not addressed  by
          the special masters award for the actual taking.14  But Lundgren
did  not make this argument to the special master or the superior
court, and therefore it is not before us in this appeal.

          We  AFFIRM  the  superior courts  denial  of  Lundgrens
December  2006 motion for a dismissal or an alternative valuation
     1     The  remaining  parties  stipulated  to  this  partial
dismissal  in  January 2004, and in February  2004  the  superior
court  approved  the  Citys dismissal  of  the  taking  of  these

     2     In  the spring of 2003 the City began construction  on
the  sports complex, which occupied several of the parcels  taken
from  Lundgren.   By  the spring of 2004 the sports  complex  was

     3     Prior  to a statutory amendment in 2004, AS  09.55.275
required  a condemnor to obtain preliminary plat approval  before
acquiring land through eminent domain. AS 09.55.275 (2003);  Mun.
of  Anchorage  v.  Suzuki, 41 P.3d 147, 149 (Alaska  2002).   But
Lundgren  neither raised an objection about the platting  process
before,  nor  filed an appeal from, the entry of  final  judgment
granting  title and possession to the City.  Neither the pre-2004
nor  the  2004  version  of  the statute  prescribed  a  definite
deadline for filing a final replat.  AS 09.55.275 (2003); ch. 96,
2,  SLA  1975;  AS  09.55.275  (2004);  ch.  32,   2,  SLA  2004;
Hillstrand  v. City of Homer, ___ P.3d ___, Op. No.  6426  at  10
(Alaska, October 30, 2009).

     4     Suzuki,  41 P.3d at 150 (citing Cissna v.  Stout,  931
P.2d  363,  366 (Alaska 1996)); R & Y, Inc. v. Mun. of Anchorage,
34 P.3d 289, 293 (Alaska 2001).

     5    R & Y, Inc., 34 P.3d at 293.

     6    Op. No. 6426.

     7    See id. at 7.

     8      The  City  asserts  that  Lundgren  actually  is  now
belatedly   appealing  the  superior  courts  March  2003   order
authorizing  the  Citys  taking, a final  judgment  requiring  an
appeal  within  thirty  days.  Because  Lundgrens  December  2006
motion  did  not  dispute  issues  of  authority,  necessity,  or
possession  and  because  it  addressed  issues  that   developed
following  the superior courts March 2003 order, this  appeal  is
not untimely.

     9    See AS 09.55.440(a); AS 09.55.460(b).

     10    AS 09.55.330 (For the purpose of assessing compensation
and damages, the right to them accrues at the date of issuance of
the summons, and its actual value at that date is the measure  of
compensation of the property to be actually taken, and the  basis
of  damages  to  property  not  actually  taken  but  injuriously
affected in the cases where the damages are allowed.).

     11     Lazy  Mountain Aviation, Inc. v. City of Palmer,  618
P.2d  570,  571  (Alaska 1980) (Numerous cases from jurisdictions
with similar statutes and constitutional provisions hold that the
just   compensation  requirement  is  satisfied  by  fixing   the
valuation date as of the commencement of the action.).

     12     Kirby Forest Indus. v. United States, 467 U.S. 1,  10
(1984) ( Just compensation, we have held, means in most cases the
fair   market  value  of  the  property  on  the   date   it   is

     13    Op. No. 6426 at 10.

     14    See State v. Hammer, 550 P.2d 820, 823-27 (Alaska 1976)
(allowing  a lessor of property to recover damages for disruption
of  his  business because our principle of compensation,  .  .  .
instead  of looking at the benefit to the condemnor as a  measure
of  compensation, looks to the loss to the owner, as measured  by
an objective standard).

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