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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Anchorage Board of Adjustment v. LBJ, LLC (4/2/2010) sp-6467

Anchorage Board of Adjustment v. LBJ, LLC (4/2/2010) sp-6467, 228 P3d 87

     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,


SCHOOL DISTRICT, ) Supreme Court No. S-13337
Appellants, ) Superior Court No. 3AN-06-04251 CI
v. ) O P I N I O N
LBJ, LLC, ) No. 6467 - April 2, 2010
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Fred Torrisi, Judge.

          Appearances:  W. Michael Stephenson, David A.
          Nesbett,  Jermain  Dunnagan  &  Owens,  P.C.,
          Anchorage,  for  Appellant  Anchorage  School
          District.   Robert A. Royce, Moira K.  Smith,
          Ashburn   &   Mason,  P.C.,  Anchorage,   for

          Before: Carpeneti, Chief Justice, Winfree and
          Christen,  Justices.   [Fabe,  Justice,   not

          PER CURIAM

          The  Anchorage  School  District appeals  the  superior
courts  decision  reversing the Anchorage  Board  of  Adjustments
decision  and  reinstating that of the Anchorage Platting  Board.
We  AFFIRM the superior courts decision for the reasons expressed
in that decision, which we attach as an appendix.


LBJ, LLC,                                         )
          Appellant,                    )
                              )    Case No. 3AN-06-4251 CI
v.                                                     )
ANCHORAGE BOARD OF                       )    Planning Dept. Nos.
                                   S-11099-3 & 4
SCHOOL DISTRICT,                        )
          Appellees.                    )

                      Decision on Appeal*
          The  Municipality of Anchorage built a new high  school
in  Eagle River near the end of Yosemite Drive, a road leading to
a  subdivision  being developed by Appellant LBJ.   The  Platting
Board found that this required the school district to improve the
road,  but  the Board of Adjustment reversed based on  a  Traffic
Impact  Analysis,  which concluded that no  major  upgrades  were
required.  The developer argues that the latter decision was  not
supported by substantial evidence, and that because the road  was
designated an urban collector, the improvements were required  by
the city code.1
Summary  of  proceedings  before  Platting  Board  and  Board  of
          The  Eagle Pointe Subdivision is some 93 acres, and has
been  under development since 1998.  Partially occupied  now,  it
will  eventually  have almost 300 residential units,  and  it  is
zoned  R-l  SL.   Access to Eagle River Loop Road and  the  Glenn
Highway is via Yosemite Drive, which is 24 feet wide, paved, with
gravel  shoulders, except for the portion within the Eagle Pointe
Subdivision,  which  was  built  to  urban  collector  standards,
meaning  it is 33 feet wide, with paved shoulders, curbs, gutters
and streetlights.  The road was built by LBJ at the beginning  of
its development.
          In 2003, the Municipality obtained preliminary approval
to subdivide and rezone a 50 acre tract on the Glenn Highway (SW)
end  of  Yosemite Drive, for construction of a new  high  school,
Eagle  River High.  The Anchorage Assembly approved the rezoning.
The  new  designation  was  PLI, Public Lands  and  Institutions,
within  the  urban improvement area in LBJs view,2  although  ASD
argues that the designation as urban did not take effect,  if  it
ever  did,  until  well  after  the  2003  preliminary  plat  was
approved.   The  preliminary approval had not  required  specific
improvements  to  Yosemite  Drive,  deferring  instead   to   the
recommendations  of  the Traffic Impact Analysis,  but  when  the
matter  came  back to the Platting Board in 2005, it  found  that
upgrades  were  required, including sidewalks, a critical  safety
          issue.  The board also concluded that it was important that the
school  be  allowed  to open as scheduled.   The  Platting  Board
accordingly listed the improvements that would have to be made to
the  road,  but  gave the school district time  to  seek  funding
alternatives from the Municipality.  The board noted that it  was
treating  the application as it would for any other  entity,  and
imposed standards equivalent to urban collector standards,  which
would  require  upgrades similar to those in place  on  the  most
eastern  portion  of  the road  curbs, gutters,  lighting,  paved
shoulders and a separated multi-use path.3
          The   school   district  appealed  to  the   Board   of
Adjustment.  The BOA determined that the Platting Boards decision
was  not  supported by substantial evidence, substituted its  own
judgment,  and concluded that Yosemite Drive did not need  to  be
upgraded to urban collector standards.  It instead reinstated the
earlier  Platting  Board  condition requiring  negotiation  of  a
subdivision  agreement with the Private Development  Section  for
construction of any road improvements that may be required by the
final  approved Traffic Impact Analysis.  It also concluded  that
the  finding  that  the lack of a sidewalk was  a  critical  life
safety  issue  was  not  supported by substantial  evidence.   It
declined  to  address  whether the Platting  Board  exceeded  its
authority  in  requiring specific design standards,  whether  the
designation of an urban residential area was correct, whether the
school  district was a subdivider as that term  is  used  in  AMC
2l.75.035,  and whether the district could be required  to  enter
into  a  subdivision agreement.  (It found that ASD  had  already
agreed  to enter into the subdivision agreement to implement  the
recommendations  of the Traffic Impact Analysis.)   The  TIA  had
concluded  that  the  road  could accommodate  a  school  of  800
students  without  the upgrades required by the  Platting  Board.
This appeal followed.4
Standard of Review
          This  appeal  is  on  the  municipal  record,  and  the
findings  are to be sustained if, in light of the entire  record,
they  are  supported by substantial evidence.5  I am to view  the
evidence  in  favor  of  the  findings,  without  reweighing  and
substituting my judgment.6  Moreover, a presumption  of  validity
is  to  be  accorded zoning decisions.7  The adequacy of findings
and  conclusions, however, does present a legal  issue  which  is
reviewed de novo,8 as are other such issues not involving  agency
expertise,9  or  which  present  only  a  question  of  statutory
interpretation.10  Questions that do involve agency expertise are
reviewed to determine if they have a reasonable basis.11
          ASD  disagrees with Appellants statement that I  should
view the BOA decision just as the supreme court views one of  the
superior court sitting as an intermediate appellate court, and to
the  extent  this standard conflicts with that stated above,  the
school  district is correct; deference is afforded to the  boards
interpretation within its proper sphere.12  But there may also be
a  question of how to interpret an ordinance that says  that  the
findings  of the platting board . . . and the board of adjustment
shall not be reversed if, in light of the whole record, they  are
supported by substantial evidence,13 if the two bodies came  down
          on opposite sides on an important factual issue.  Given the
deferential  standard,14 it is conceivable  that  both  decisions
could  be supported by substantial evidence.15  While courts  try
to  be  consistent in applying the standard of review, it is  not
always a completely straightforward exercise.16
Statement of facts and the positions of the parties
          The  school district emphasizes the chronology  of  the
proceedings  below, noting the long period of time  that  elapsed
between the preliminary commitment and the hearing at which local
residents  turned out at the bidding of LBJ and  steamrolled  the
platting board into requiring improvements to Yosemite Drive.  It
points  out  that LBJ principal Jose Vincente did not  originally
ask  for  upgrades  to urban collector standards,  and  that  the
preliminary  plat was approved without objection.  The  road  was
not designated as a collector street until September of 2003, and
the  TIA  completed in early 2004 concluded that it was  adequate
for the projected traffic.  Mr. Vincentes appeal of this decision
was  rejected as untimely, apparently because condition G of  the
preliminary approval required submission of the traffic analysis.
But  when  approval  of  the final application  dragged  on,  Mr.
Vincente was able to reopen the public hearing to address  issues
relating  to  Yosemite Drive, based on new  evidence  or  changed
circumstances.  The Platting Board was informed that the MOA  was
seeking  state funding of a project to upgrade the road to  urban
collector standards, although staff recommended against requiring
ASD to require this.
          At  the  March  8, 2005 Assembly meeting, Mr.  Vincente
testified  that ASDs construction of a new school was subject  to
title  21  of  the municipal code, and improvements  to  Yosemite
Drive  were needed.  The school district agreed that it was bound
by title 21, but noted that the municipality builds roads and ASD
doesnt.   The major road issue discussed at this meeting and  the
subsequent  school  board  meeting concerned  drainage,  and  the
Assembly deferred to the Platting Board.
          By  letter of March 31, 2005, LBJ noted that it was now
time  for  the  Platting Board to determine the  most  compatible
improvement area under AMC 21.85.020(E).  The letter  urged  that
the  designation be urban, and argued, as Appellant does in  this
appeal,  that this meant that the road would have to be  upgraded
by  the  district  to  the  urban  standards  set  forth  in  AMC
21.85.030(A),   which  does  indeed  list  curbs   and   gutters,
sidewalks, walkways and street lighting.17  At the public hearing
in April, the Platting Board heard from both sides on this issue,
and  approved  a  motion  that  Yosemite  Drive  be  improved  to
collector status.  While it was originally contemplated that this
would  happen  before the new school opened in the  fall,  calmer
heads prevailed and the requirement was delayed, as reflected  by
the June 1 decision of the Platting Board.
     Since  LBJs position is that the urban classification  means
that  the  road  upgrades  are required  by  the  ordinance,  the
district  argues that the Platting Board never did find that  the
school  site should be placed in an urban improvement  area.   It
also  argues  that the BOA decision is supported  by  substantial
     evidence, and that if upgrades are necessary, the Municipality is
responsible  for them.  ASD also maintained in both its  briefing
and  at  oral  argument that, for a variety of  reasons,  setting
aside  the BOA decision and reinstating the Platting Boards would
be unfair.  Each of these issues will be addressed in turn.
Did  the  Platting  Board  place  the  new  school  in  an  urban
improvement area?
          LBJ  starts  from the premise that the  Platting  Board
placed  the school subdivision in an urban improvement area.   It
quotes  the head of MOAs planning director that upon adoption  of
the  PLI  zone by the Assembly, the property will be  subject  to
urban development standards.  The full quotation is set forth  in
the opening brief, and the Platting Board adopted a resolution  a
month  later that said basically the same thing:  Yosemite  Drive
was designated a collector street in 2003, and if rezoned to PLI,
the  effect would be to subject the property to urban rather than
rural road improvement development standards under AMC 21.85.020.
A  month  later, the Assembly did just that, and that change  was
duly  noted  by  the  Platting Board  in  its  discussion  before
adoption of its decision on June 1.
          But  ASD  still contends that the board failed to  make
the necessary finding that the school site should be placed in an
urban improvement area.   It points to the April 20, 2005 meeting
in  which the board did not act on a specific request for such  a
finding,  and to the vote on an amendment to use the words  urban
collector standards in Condition 11.  It also notes that much  of
Tract A is undeveloped and could reasonably be designated rural.
          The ordinances, however, require the Platting Board  to
place  a  subdivision  within  the PLI  zoning  district  in  the
improvement  area  that it finds to be most compatible  with  the
proposed   use   of   the   parcel  and   the   zoning   district
classifications  of  the surrounding area.18   The  Eagle  Pointe
Subdivision, east of the school and parcel A in the site plan, is
zoned   R-1,  which  is  by  ordinance  an  automatically   urban
designation,  and  parcels C and D, west and northwest,  are  I-2
(industrial),  also  urban.19   Eagle  River  Loop  road,   which
intersects  Yosemite and connects it with the  highway,  is  also
zoned  residential.  The Mental Health Trust owns parcel B, zoned
PLI,  which is also the case with the lands to the north and west
of the area.  There is a greenbelt to the northeast.
          In  addition  to arguing that the urban designation  is
the  most  compatible with the area, LBJ notes that the  district
argued  to  the Board of Adjustment that the Platting Board  took
that  action, and that the BOA characterized the issue raised  in
the  appeal  as whether the board erred in determining  that  the
Eagle River High School site should be designated urban under AMC
21.85.020.  While it ultimately concluded that it did not need to
resolve  this issue, Appellant is correct that this is  the  only
way to read the administrative record.  The Platting Board placed
the  school  site in an urban improvement area,  and  then,  even
while   declining  to  directly  apply  the  ordinance,   imposed
requirements equivalent to those found in AMC 21.85.030(A).
How  should  the  two decisions on urban collector  standards  be
          Neither  the  Platting  Board  nor  the  BOA  expressly
decided  whether the urban designation meant that Yosemite  Drive
had  to be upgraded to urban collector standards, with the former
board   mandating  equivalent  improvements,   and   the   latter
determining  that  the decision to require the upgrades  was  not
supported by substantial evidence.  The Board of Adjustment  then
concluded  that  it did not need to decide whether  the  Platting
Board exceeded its authority in requiring the improvements.   LBJ
argues  that  not only did the Platting Board have the  power  to
impose  urban collector standards, but that both it and  the  BOA
were required to do so by AMC 21.85.030(A).
          The  platting  authority may only  approve  plats  that
conform  to  chapters 21.75 through .85 of the municipal  code,20
and  21.85.030  provides that the subdivider shall construct  and
install  the  improvements  provided  by  this  section  for  the
improvement area where the subdivision is located.  Subsection  A
of this ordinance lists those items required for the urban areas,
and  they  are  basically the same improvements required  by  the
Platting  Board.  The Board finessed the question of whether  the
standards  applied directly, worrying about precedent,  and  then
the  district  argued  on appeal that specific  design  standards
proposed by the developer couldnt be imposed upon it in this way.
But it is difficult to understand exactly how the standards might
have been thought not to apply, given the understanding that  ASD
would   be   treated   as   any  other   subdivider21   and   the
straightforward language of the municipal ordinances.
          ASD essentially argues that such a result would not  be
fair   all that was originally sought was an improvement  to  the
roads  shoulders,  the  preliminary  plat  did  not  contain  the
requirements,  and  Yosemite Drive wasnt designated  a  collector
street  until  after approval of the preliminary plat.   The  TIA
concluded  that  the  road was adequate.  The  Chugiak  Birchwood
Eagle  River Rural Road Service Area has the authority to upgrade
the road.  Historically, MOA and not the district has funded such
improvements.   Money  has been requested from  the  Legislature.
These  latter contentions will be addressed next, followed by  an
attempt  to  apply  the  standard of review  to  the  conflicting
decisions of the two boards that considered the issue, and then a
brief discussion of fairness and procedural due process.
Is the Municipality rather than ASD responsible for the upgrades?
          The  Board  of  Adjustment concluded that  the  Chugiak
Birchwood Eagle River Rural Road Service Area (CBERRRSA) had  the
authority  but  not  the  responsibility to  fund  and  construct
improvements to Yosemite Drive.  Without providing any  authority
to  demonstrate that the board erred in this regard,  ASD  argues
that the record is absolutely clear that the Municipality and not
it  has  historically  funded and constructed  road  improvements
adjacent to schools, and that CBERRRSA is the responsible service
area.   It  further notes that if MOA requested a grant from  the
Legislature  to pay for the improvements, that using state  money
would  trigger federal funding.  It accuses LBJ and residents  of
the   Eagle   Pointe  Subdivision  of  clamoring  for   immediate
improvements to improve their own situation at public expense.
          As  was  observed  above, ASD has not  argued  that  it
          should be treated differently than any other subdivider.  It is
therefore incumbent upon it to provide the analysis and authority
for its position.  While it provides the germ of an argument with
its  contention that it shouldnt have to provide improvements for
the entire length of Yosemite Drive, it fails to develop this, or
to  show  how  the  history  and politics  involved  advance  its
position under the applicable ordinances.  LBJ built the road  to
the required standard within its subdivision, and the district is
essentially being held to the same standard, albeit to  a  longer
stretch of the road and in a context that evolved over time.

     Nor  is  the  relationship between ASD and the  Municipality
raised in this
appeal.  This is a complex subject, which has a number of  checks
and  balances,22 and which has been addressed to some  extent  by
Alaska  law.23   A  conclusion that ASD is  responsible  for  the
upgrades  in no way precludes city or even state funding  of  the
project.   But  absent  some answer to  the  seemingly  universal
requirements  of  the  Code,24 the Districts  argument  that  the
CBERRRSA is directly responsible for the upgrades must fail.
What does the substantial evidence test mean in this context?
          As   noted  earlier,  this  courts  review  of  factual
determinations does not allow for re-weighing of the evidence;  a
finding   is   to  be  sustained  if  supported  by   substantial
evidence.25  But AMC 21.30.190 gives this deferential standard to
both  boards,  and  they arrived at different conclusions  as  to
whether  Yosemite  Drive had to be upgraded  to  urban  collector
standards.  Specifically, the Board of Adjustment found that  the
Platting Boards decision requiring the upgrade of Yosemite  Drive
to  urban  collector standards was not supported  by  substantial
evidence.   It  then substituted its judgment and reinstated  the
condition  that only required compliance with the recommendations
of the Traffic Impact Analysis.
          Consistent  with  this conclusion, the school  district
argues  that the TIA provided a valid basis for the BOA decision.
LBJ  responds to this by pointing out flaws in the analysis,  and
there  is  ample  material in the record from  which  to  support
either  conclusion.  The BOA did not discuss the evidence in  its
decision,  citing  only  to  the TIA, and  disagreeing  with  the
conclusion that the increased traffic volume and safety  concerns
constituted substantial evidence for the decision of the Platting
Board.   The  BOA also cited testimony that there was  already  a
trail from the subdivision to the school, and concluded that  the
finding  that  the absence of a sidewalk posed  a  critical  life
safety  issue  was  not supported by substantial  evidence.   LBJ
contends  that  there was indeed substantial  evidence  that  the
street  is too narrow and too dark for winter use by pedestrians,
especially students.
          But  despite the briefing and argument, it  still  isnt
apparent  how  the Board of Adjustment reached its  decision,  or
that  there  is a genuine issue of material fact raised  by  this
appeal.  The first predicate fact to the Platting Boards decision
was  that  Yosemite Drive was a collector road.   The  BOA  never
          disagreed with this finding, which seems wholly in line with the
terms  definition.26   Next, the Platting Board  found  that  the
subdivision  had been rezoned PLI by the Assembly,  and  the  BOA
likewise  did not disagree with this finding.  When a subdivision
is  rezoned  PLI,  the Platting Board must place  it  within  the
improvement  area  that it finds to be most compatible  with  the
proposed  use  of  the subdivision and zoning of the  surrounding
area.27   Having  reached  this point,  the  Platting  Board  was
required to decide which improvement area under AMC 21.85.020 was
most appropriate for the new Eagle River High School Subdivision,
as  was discussed earlier.  ASD has simply never explained how it
is  that the BOA could leave this analysis essentially unchanged,
and  yet  conclude that urban collector standards dont  apply  to
this particular stretch of road.  Accordingly, the issue posed is
a  legal one, and ASD has failed to supply a reasonable basis for
the  decision  made by the Board of Adjustment.  And,  while  the
finding of the Platting Board that the improvements are justified
by safety concerns might be sustained as supported by substantial
evidence,  it  is  not  necessary to reach this  issue,  since  I
conclude that if Yosemite Drive is an urban collector street, the
ordinance requires the improvements by operation of law.
Was ASD denied due process or treated unfairly?
          As   noted   earlier,  the  school   district   devoted
substantial portions of its memorandum and oral argument  to  the
chronology of the proceedings below and the reasons why  reversal
of  the  BOA  decision would be unfair to it and the citizens  of
Anchorage.  Yosemite Drive was not designated a collector  street
at  the  outset,  and the preliminary plat did  not  require  the
upgrades  that  were later deemed necessary.  ASD maintains  that
this didnt allow it to budget for the improvements and obtain the
necessary appropriation.
          One might imagine that private developers would make  a
similar  pitch, when unanticipated environmental or  other  costs
raise  the  price, and the first question would  be  whether  the
improvements are actually required.  That will often be a factual
issue,  and if the developer was denied an opportunity  to  fully
present   evidence   or  was  otherwise  disadvantaged   in   the
proceedings,  a  remand  might be  necessary  to  assure  a  fair
process.   But  if the law is unambiguous and doesnt  turn  on  a
factual  dispute, the fact that the cost may have been unforeseen
will  not  give  rise  to any remedy on  appeal.   Nor  does  the
districts  perfunctory invocation of due process help its  cause,
since   even  if  treated as a party entitled  to  constitutional
protection   it  fails  to  point  to  a  failure  of  notice  or
opportunity  to  be  heard, but rather asks  for  a  result  that
appears to be contrary to what is required by the Municipal Code.
By  definition,  the process contemplates that changes  might  be
made  to  a  preliminary  plat.   While  the  district  may  feel
snookered  by  the unique chronology and late-breaking  politics,
the  result should have been predictable as far back as September
of  2003,  when the transportation plan was amended to  designate
Yosemite  Drive  a  collector, and I find no  unfairness  to  the
          The  district has agreed from the outset  that  it  was
subject to title 21 of the Municipal Code.  While it is true that
significant effort in the administrative proceedings was  devoted
to  issues of traffic and safety, and that the Platting Board did
not directly rule that Yosemite Drive was an urban collector,  it
does  appear  that  there is no other way  to  read  the  record.
Accordingly,  the issue presented in this appeal is  more  narrow
must  a  subdivider upgrade a road to the standards set forth  in
AMC  21.85.030(A) when, prior to approval of a  final  plat,  the
road  is  found  to  be a collector road in an urban  improvement
area?   I conclude that the answer is yes.  While a traffic study
might be used to require improvements to a road not designated an
urban  collector,  it  cannot  be used  to  dispense  with  those
required  by  the  Code, at least not without going  through  the
variance  procedure.  Accordingly, the decision of the  Board  of
Adjustment is reversed and that of the Platting Board reinstated.
          Dated:  October 15, 2008
          /s/  Fred Torrisi
          Superior Court Judge
     *     The superior courts Decision on Appeal has been edited
to  conform  to  our style and formatting requirements  and  most
internal citations have been omitted.

     1    Anchorage Municipal Code (AMC) 21.85.030.

     2    See AMC 21.85.020(E).

3    See AMC 21.85.030(A).

     4     AMC  21.30.180;  AS 22.10.020(d); Alaska  R.  App.  P.

     5     S. Anchorage Concerned Coal., Inc. v. Coffey, 862 P.2d
168, 173 (Alaska 1993); AS 29.40.060; AMC 21.30.180(A), 190.

     6     Raad v. State Commn for Human Rights, 86 P.3d 899, 903
(Alaska 2004).

     7    S. Anchorage Concerned Coal., 862 P.2d at 173 (citing 3
Edward  Ziegler, Rathkophs The Law of Zoning and Planning,  42.07
at 42-65 (1992)).

     8     Raad,  86  P.3d  at 904; Alvarez v. Ketchikan  Gateway
Borough, 28 P.3d 935, 938 (Alaska 2001).

     9     Holding v. Municipality of Anchorage, 63 P.3d 248, 250
(Alaska 2003).

     10   Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903-904 (Alaska 1987).

     11   Id. at 903.

     12    S.  Anchorage Concerned Coal., 862 P.2d at  173  n.12;
Vill.  of Eklutna v. Bd. of Adjustment, 995 P.2d 641, 643 (Alaska

     13   AMC 21.30.190.

14     See   Ketchikan   Gateway  Borough  v.  Ketchikan   Indian
Corp., 75 P.3d 1042, 1045 (Alaska 2003).

     15    See  AMC  21.30.095 (Board of Adjustment decisions  on

     16    See  generally Galt v. Stanton, 591 P.2d  960,  966-67
(Alaska 1979) (Rabinowitz, J., concurring).

     17   AMC 21.85.030(A)(3)-(6).

     18   AMC 21.85.020(E).

     19   AMC 21.85.020(A).

20   AMC 21.75.010(A)(1).

     21   AMC 21.75.035.

22     Homeward  Bound,  Inc.  v.  Anchorage  School  Dist.,  791
P.2d 610, 612 (Alaska 1990).

     23   AS 14.14.060-065.

     24   AMC 21.85.010.

     25   See note 5, above.

     26   AMC 21.35.020.

     27   AMC 21.85.020(E).

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