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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Krause v. Matanuska-Susitna Borough (4/23/2010) sp-6471

Krause v. Matanuska-Susitna Borough (4/23/2010) sp-6471, 229 P3d 168

     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

RICHARD KRAUSE and )
B. JEAN KRAUSE, ) Supreme Court No. S- 13068
)
Appellants, ) Superior Court No. 3PA- 07-01277 CI
)
v. ) O P I N I O N
)
MATANUSKA-SUSITNA BOROUGH, ) )
CAROL CHRISTIANSEN, NORMA ) No. 6471 April 23, 2010
CHRISTIANSEN, TED PERDUE,)
JEANETTE PERDUE, CURT)
CHRISTIANSEN, and MONIQUE )
CHRISTIANSEN, )
)
Appellees.)
)
          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Vanessa White, Judge.

          Appearances:  Joe P. Josephson,  Josephson  &
          Associates,  P.C., Anchorage, for Appellants.
          Nicholas  Spiropoulos, Palmer,  for  Appellee
          Matanuska-Susitna   Borough.    Patricia   R.
          Hefferan,   Wasilla,  for   Appellees   Carol
          Christiansen, Norma Christiansen, Ted Perdue,
          Jeanette   Perdue,  Curt  Christiansen,   and
          Monique Christiansen.

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

          CHRISTEN, Justice.
               

I.   INTRODUCTION
          Property   owners  in  the  Matanuska-Susitna   Borough
obtained  preliminary  approval for  a  plat  after  agreeing  to
certain  conditions regarding easements and rights-of-way.   They
submitted  a  final version of the plat that did not  conform  to
those conditions, but the Borough Platting Board accepted it  for
recording.   Other  owners of property in  the  same  subdivision
complained to Borough officials, appealed to the Borough Board of
Adjustments and Appeals, and ultimately filed a separate suit  in
superior  court  making constitutional and  statute-based  claims
against  the Borough and the landowners who submitted  the  plat.
The  superior  court  ruled that the constitutional  claims  were
improper  and  that  the remaining claims were  time-barred.   We
affirm dismissal of the constitutional claims for damages, but we
reverse  dismissal of the constitutional claims  for  declaratory
relief  and  the  statute-based claims.  We  remand  for  further
proceedings.
II.  FACTS AND PROCEEDINGS
          Richard  and  B. Jean Krause own real property  in  the
Finger Cove Estates subdivision of the Matanuska-Susitna Borough.
The  individually  named  defendants also  own  property  in  the
subdivision.  According to the Krauses,1 in late 2000  Carol  and
Norma  Christiansen  applied  to  vacate  a  platted  street  and
connecting  utility  and vehicle access  easement.   The  Krauses
objected  to  the  application  to  vacate  and  presented  their
position at a public hearing before the Mat-Su Platting Board  on
December 7, 2000.  At the conclusion of the hearing, the Platting
Board   approved   the   platting  changes   requested   by   the
Christiansens,  drafted  a  preliminary  plat  to  reflect   this
approval, and imposed several conditions regarding easements  and
rights-of-way to appease the Krauses concerns.  Accordingly,  the
Krauses withdrew their objection.  The Christiansens submitted  a
final  version  of  the  plat that did not satisfy  the  Platting
Boards conditions. It appears that the Krauses received notice on
November  13, 2002 that the plat would be accepted for recording,
but the final plat was not recorded until November 26, 2002.  The
differences in the easements and rights-of-way in the final  plat
made egress from and ingress to the [Krauses] residence difficult
and dangerous.
          The Krauses allege that they discovered on December  10
or  11, 2002 that the plat had been recorded.  They met with  the
Borough  Manager  and Acting Planning Director to  explain  their
grievances  on  December  18 and continued  to  communicate  with
various  members  of  Mat-Su Borough government  regarding  their
objections  to the plat throughout February 2003.   On  March  3,
2003,  they  received a letter from the Borough  Manager  stating
that  review  of  the  platting action was closed.   The  Krauses
requested reconsideration of that conclusion from the Manager ten
days  later  and,  after receiving no response, appealed  to  the
Borough Board of Adjustment and Appeals (BOAA) on March 24, 2003.
On April 1, 2005, the BOAA ruled that the Borough Managers letter
was  not  a decision from which it could properly hear an appeal.
The  BOAA therefore dismissed the Krauses case.  The Krauses then
appealed  that  dismissal order in the superior court.   Superior
Court  Judge  Beverly Cutler affirmed on March 12,  2007,  ruling
          that only the BOAA, not the Borough Manager, had authority to
hear  appeals of platting decisions.2  The Krauses did not appeal
Judge Cutlers ruling.
          On  April  25,  2007,  the  Krauses  filed  a  separate
complaint  in  the  superior court, alleging some  of  the  facts
recited  above3  and  naming as defendants the  Matanuska-Susitna
Borough   (the  Borough),  Carol  and  Norma  Christiansen   (the
Christiansens),  Ted Perdue, Jeanette Perdue, Curt  Christiansen,
and  Monique  Christiansen  (the  individual  defendants).4   The
Krauses asserted that they were entitled to institute this action
by  AS 29.40.190,5 and they made three claims for relief.  First,
the Krauses claimed that the actions of the Christiansens and the
Borough  violated  [Matanuska-Susitna  Borough  Ordinance  (MSB)]
16.10.060(F), which requires that all conditions of  approval  be
met  before  a  final  plat is submitted for recording,  and  MSB
16.15.051(A),  which requires that a final plat be  submitted  in
conformance with the preliminary plat as approved.6  Second,  the
Krauses  claimed that [b]y its singular treatment of the  Krauses
and  the Christiansens, the Borough deprived the Krauses of their
right  to equal protection.  Third, the Krauses claimed that  the
Borough  violated their right to due process by (1) not requiring
the  Christiansens to request, and thus participate in, a hearing
regarding  their  proposed  material  changes  to  the   approved
preliminary plat; (2) not requiring the Christiansens  to  submit
and  have  a  hearing regarding a new petition for a  preliminary
plat;  (3) depriving the plaintiffs of their legitimate interests
in  property  as  well  as of their use of a platted  subdivision
street  and  related  public use easement which  were  improperly
vacated and transferred to private ownership.  The Krauses sought
declaratory  judgment  that  the  final  plat  was  not  lawfully
approved  or adopted, was at variance with the preliminary  plat,
and  is  void  and  without force or effect.   They  also  sought
compensatory  damages  from the Borough and compensatory  damages
and  statutory  penalties  from the Christiansens.   The  Krauses
requested  entry  of a permanent order and decree  restoring  the
status  quo  as it existed before the Christiansens modified  the
plat  and  directing  the defendants not to  interfere  with  the
Krauses use and enjoyment of their easements and rights-of-way.
          On  July 5, 2007, the Borough filed a motion to dismiss
under  Alaska Civil Rule 12(b)(6).7  The Borough argued that  the
Krauses  constitutional claims lacked merit because [t]he  Alaska
Supreme Court has never recognized a direct constitutional  cause
of  action against a municipality.  Citing Lowell v. Hayes,8  the
Borough  argued that this dispute did not merit the  creation  of
such  a  cause  of action because the Krauses had an  alternative
statutory  remedy under which they also requested  relief.9   And
the  Borough argued that the statutory limitation imposed by  the
Alaska  Legislature for this entire action has  run  because  the
applicable statute of limitations for the AS 29.40.190 claim, set
by AS 09.10.070, is two years.  The Borough observed that because
the  Krauses  complaint  alleged that  the  final  plat  made  it
dangerous  to  enter  and exit their residence  and  included  no
allegations that the danger was generated by anything other  than
the  recording of the plat in November 2002, the cause of  action
          accrued more than two years before the complaint was filed.
          The Krauses opposed the motion to dismiss.  They argued
that  the  approval  of the final plat is a continuing  violation
under  AS  29.40.190(b),  so the two-year  limitation  period  in
AS  09.10.070 did not bar their claims.  Second, they argued that
because  their  claims involve real property, other  statutes  of
limitations     ten years under AS 09.10.030 or AS 09.10.100,  or
six   years   under  AS  09.10.050     apply.     Regarding   the
constitutional  claims, the Krauses argued that  this  court  had
neither  adopted  nor  rejected the doctrine  the  United  States
Supreme  Court created in Bivens v. Six Unknown Named  Agents  of
Federal   Bureau  of  Narcotics,10  which  permits,  under   some
circumstances,  rights  of  action  for  damages   arising   from
constitutional violations by government agents.11
          Superior  Court  Judge  Vanessa  White  dismissed   the
Krauses  suit.   The  court first disposed of the  Krauses  equal
protection and due process claims.  Relying on Lowell, the  court
ruled  that  [t]he Borough correctly asserts that the  plaintiffs
may  not make a claim for infringement of a constitutional  right
as  long as alternative statutory remedies exist, and the Krauses
acknowledge  they  have a cause of action for damages  associated
with the alleged violations of the Borough ordinances, as well as
a statutory remedy under AS 29.40.190.12  The court ruled that the
Krauses  remaining  claims  are time-barred  for  three  reasons.
First,   the  court  reasoned  that  the  claims  under   Borough
ordinances   are   subject   to  the   two-year   limitation   of
AS  09.10.070, which governs causes of action for . . . injury to
the   rights  of  another  not  arising  on  contract   and   not
specifically  provided otherwise.  Second, the court  ruled  that
the two-year statute of limitations period in AS 09.10.070 barred
claims  against  the Christiansens for compensatory  damages  and
injunctive  relief.13  Third, the court ruled that  the  one-year
statute  of  limitations  period in AS  09.10.090  prevented  the
Krauses from bringing a claim for statutory penalties.  The court
rejected  the  Krauses  argument that  they  were  subject  to  a
continuing  violation, reasoning that the Krauses claims  accrued
at  the time the Borough platting authority approved the proposed
final  plat without the easement plaintiffs expected even  though
the injury was ongoing.  The court noted that the Krauses had not
made  allegations suggesting that the accrual was delayed by late
discovery of the change to the plat and specified that this claim
was  dismissed without prejudice, so if the Krauses could  assert
facts  which would toll the two year statute of limitations,  the
court  would consider a motion to amend the complaint.  The court
rejected  the  contention  that  longer  limitations  periods  in
AS  09.10.030 (governing recovery of real property), AS 09.10.100
(the  catch-all  statute of limitations)  or  AS  09.10.050  (for
trespass and waste) applied to the Krauses claims.
          On  December 17, the Krauses requested leave  to  amend
their  complaint. They asserted that the statute  of  limitations
period  for their statutory claims was equitably tolled by  their
administrative appeal, which the superior court did  not  resolve
until  March  2007.   Equitable  tolling  applied,  they  argued,
because   they  pursued  a  remedy  in  another  forum,   thereby
          indicating to the defendants that they were contesting the plat.
The  Krauses  submitted an affidavit describing  the  history  of
their  actions  after  the  plat was  recorded,  including  their
communications with Borough officials and the BOAA appeal.   They
also lodged an amended complaint, which contained a new paragraph
asserting that:
          [t]hroughout  a lengthy, multi-year,  period,
          the  plaintiffs  attempted to negotiate  with
          the   defendants  in  good  faith,   pursuing
          remedies through mediation, as well as  in  a
          quasi-judicial forum (the [BOAA]), and  in  a
          judicial  forum  (an  appeal  taken  to   the
          superior  court  from  the  decision  of  the
          [BOAA] that it lacked jurisdiction to address
          the issues raised by the plaintiffs).
          
          The  Borough  opposed  the  Krauses  motion  to  amend,
offering four reasons the elements of equitable tolling were  not
met:  (1) the Krauses previous case was an appeal of the  Borough
Managers  letter  rather than an appeal of the  approval  of  the
plat; (2) collateral estoppel bars the Krauses from arguing  that
the  Borough Manager is a judicial or quasi-judicial forum,  and,
in  the alternative, the Borough Manager is not such a forum; (3)
the  Krauses administrative appeal of the BOAA decision (assigned
to  Judge  Cutler)  did  not put the Borough  or  the  individual
defendants on notice of all of the claims asserted in the  second
superior  court  case;  and (4) the Krauses  initial  attempt  to
secure a remedy via private meetings with the Borough Manager was
not  a  reasonable  way  to pursue a legal  claim.   The  Borough
attached  four documents from the BOAA appeal to its  opposition:
the  Boroughs  motion  to dismiss the BOAA  appeal,  the  Krauses
opposition to that motion, the Boroughs reply, and Judge  Cutlers
decision on appeal.
          The  individual  defendants also  opposed  the  Krauses
motion to amend. They argued that the Krauses should have made an
equitable tolling argument before Judge White ruled on the motion
to  dismiss  and  that leave to amend is not permitted  when  the
purpose  is  to reargue what has been decided.  They also  denied
that  they were involved in any proceedings with respect to their
property between the filing of the plat in November 2002 and  the
filing of the current suit in 2007.
          The  Krauses  replied that the Borough had  notice  the
Krauses  were  prepared  to  litigate regarding  the  plat,  that
granting  leave to amend the complaint would not cause  prejudice
to  the Borough, that they acted reasonably and in good faith  by
trying  to  negotiate  and then actively litigating  their  case,
that  collateral  estoppel did not bar  them  from  bringing  the
claims in their amended complaint, and that the Borough should be
equitably estopped from relying on the statute of limitations.
          In  an  order  issued February 12,  2008,  Judge  White
denied  the Krauses motion to amend their complaint.   The  court
wrote  that  there  were two strong bases for denying  Plaintiffs
requests:   (1)  Plaintiffs  may  not  argue  that   pursuit   of
negotiations  with the Borough Manager constitutes an  effort  to
seek relief in a quasi-judicial forum, and (2) Plaintiffs attempt
to seek quasi-judicial relief through the BOAA also was untimely.
          The  Krauses filed a motion for reconsideration,  which
the  court denied. Judge White concluded that the elements needed
to  satisfy equitable tolling are not met because (1) the Borough
Manager is not a quasi-judicial forum; (2) the prior case did not
put the Borough on notice of the claims and remedies sought here;
and  (3)  the Krauses have never alleged how the other defendants
were placed on notice of any claims whatsoever.
          The Krauses appeal the dismissal of their complaint  as
well  as the denials of their motions for leave to amend and  for
reconsideration.
III. STANDARD OF REVIEW
          We review questions of law with independent judgment.14
          We  also review with independent judgment which statute
of limitations applies to a claim.15
          The  decisions  of  trial courts regarding  motions  to
dismiss  involve  legal issues which we  review  de  novo.16   To
survive a motion to dismiss filed under Alaska Civil Rule 12,  it
is  enough  that  the  complaint set forth  allegations  of  fact
consistent  with  and  appropriate to some enforceable  cause  of
action.17   This  lenient standard means that  [i]f,  within  the
framework of the complaint, evidence may be introduced which will
sustain  a  grant  of relief to the plaintiff, the  complaint  is
sufficient.18   We  must presume all factual allegations  of  the
complaint to be true and [make] all reasonable inferences .  .  .
in favor of the non-moving party.19
          We review a superior courts denial of a motion to amend
a  complaint  for abuse of discretion.20  It is  within  a  trial
courts discretion to deny such a motion where amendment would  be
futile  because  it advances a claim or defense that  is  legally
insufficient on its face.21  We use our independent  judgment  to
review a conclusion that an amendment meets that description.22
IV.  DISCUSSION
     A.   The  Krauses  Constitutional Claims for  Money  Damages
          Were   Properly  Dismissed,  but  Their  Requests   for
          Declaratory and Injunctive Relief Based on Those Claims
          Were Not.
          We reiterated in Lowell v. Hayes that we will not allow
a  constitutional claim for damages, except in cases of  flagrant
constitutional violations where little or no alternative remedies
are available. 23  The Krauses argue that Lowell does not control
their case because the Borough and the individual defendants  did
not show that the Krauses had alternative remedies.  They contend
that  they  do not have alternative statutory remedies  if  their
potential statutory claims are time-barred, and they assert  that
the  case  at bar is a good opportunity for the Supreme Court  of
Alaska to recognize Bivens-type claims.
          Contrary  to  the  Krauses  assertion,  the  procedural
unavailability  of  alternative  remedies  does  not  negate  the
existence of those remedies.  As we wrote in Lowell:
          Surely  the  inadequacy  of  alternative
          remedies   for   alleged  constitutional
          violations cannot be measured per se  by
          the   dismissal  or  defeat   of   those
          remedies.  If that were so, the perverse
          result  would be that the more frivolous
          or  unjustifiable a claim, the  more  it
          would  merit  an  implied constitutional
          cause of action for damages.[24]
          
The Krauses could, and did, bring other claims under AS 29.40.190
and Borough ordinances.  Thus, the narrow circumstances described
in  Lowell  flagrant constitutional violations where little or no
alternative  remedies are available    do not exist  here.25   We
therefore  affirm  the  superior  courts  ruling  dismissing  the
Krauses constitutional claims for damages.
          But we reverse the superior courts ruling as it relates
to   the  Krauses  constitutional  claims  for  declaratory   and
injunctive  relief.  We have held that although damages  are  not
available,  declaratory or injunctive relief is  traditional  and
particularly   appropriate26  with  respect  to  unconstitutional
statutes.   We  believe  the same rule should  apply  here.   The
Krauses  are  not  entitled  to money  damages  for  the  alleged
violations  of  their constitutional rights, but  they  may  seek
declaratory and injunctive relief.
     B.   The Krauses May Pursue Their Statute-Based Claims.
          1.   The  two-year limitation of AS 09.10.070  and  the
               one-year limitation of AS 09.10.090 apply to  this
               action.
          The Krauses argue that their claims relate to interests
in  real  property and contend that any of the three statutes  of
limitations provided by AS 09.10.030 (actions regarding interests
in  land), AS 09.10.050 (actions for waste or trespass upon  real
property),  or AS 09.10.100 (actions not otherwise provided  for)
should apply.
          We  conclude that AS 09.10.070 and AS 09.10.090 are the
controlling statutes here.  The Krauses request relief for injury
arising from the inappropriate recording of a plat; nearly all of
their claims are properly described as claims for personal injury
.  . . or injury to the rights of another not arising on contract
and    not    specifically    provided    otherwise.27     Alaska
Statute 09.10.070(a)(5) specifically exempts statutory penalties,
which  are  instead governed by AS 09.10.090,28  so  the  Krauses
request  for  statutory penalties falls under that statute.   The
Krauses  are  not seeking the recovery of real property,  so  the
limitations  period  in AS 09.10.030 does  not  apply.   And  the
Krauses  cause of action is not based on trespass  or  waste,  so
AS  09.10.050  does not apply.  Alaska Statute 09.10.100  governs
only claims for which no other statute of limitation controls; it
does  not  apply  here  because we conclude that  other  statutes
provide time limitations for the Krauses claims.
          Significantly  more than two years passed  between  the
recording  of  the plat in November 2002 and the  filing  of  the
complaint in April 2007.  Based on the allegations set  forth  in
the  complaint,  the  superior courts initial  ruling  dismissing
these claims as untimely was correct.
          2.   The  Krauses  were  not subject  to  a  continuing
               violation.
          The  Krauses  argue  that  the  applicable  limitations
period was tolled because the action complained of constitutes  a
continuing violation.29
          We  review  the  legal question of what  constitutes  a
continuing  violation  de novo.30  We have explained  that  [t]he
continuing violations doctrine allows plaintiffs to establish  an
ongoing  tort through incidents that occurred before the  statute
of  limitations  period and that continued into  the  limitations
period.31   Here, because no action occurred after the  plat  was
recorded, the continuing violations doctrine does not apply.   We
also note that though the continuing violations doctrine prevents
claims  that  initially accrued outside the relevant  limitations
period  from  being  time-barred, it only permits  plaintiffs  to
collect   damages  caused  by  acts  that  occurred  within   the
limitations period.32  Even if the law permitted the  Krauses  to
rely on this doctrine, they would not be able to recover the full
remedy they seek.
          3.   It  was error to deny the Krauses motion for leave
               to amend their complaint.
          Alaska  Civil Rule 15(a) provides that a party  seeking
leave  to  amend a complaint to which a responsive  pleading  has
been  filed must receive permission from the court.  Leave  shall
be freely given when justice so requires.33  But we have held that
if  an  amendment would be futile because it advances a claim  or
defense  that  is  legally  insufficient  on  its  face,  it   is
appropriate for a superior court to deny leave to amend.34
          We   consider  with  independent  judgment  whether   a
proposed  amended  complaint  could  survive  dismissal;  if   we
conclude that it could not, we will hold that the superior  court
did  not abuse its discretion by denying the motion for leave  to
amend.35
          As  presented  in their complaint, the  Krauses  claims
were  time-barred; their amended complaint could only make out  a
viable  claim if it sufficiently supported an argument  that  the
applicable statute of limitations was tolled.  The Krauses  argue
that they should have been granted leave to amend their complaint
because  [t]he  equitable  tolling  doctrine  should  have   been
recognized  and  applied,  or at a minimum,  the  superior  court
should  have conducted an evidentiary hearing at which  testimony
pertinent  to  the  tolling issue could have been  received,  and
because   the  defendants  should  be  equitably  estopped   from
asserting the statute of limitations as a defense.
               a.   Drawing  factual inferences  in  the  Krauses
                    favor, the doctrine of equitable tolling  may
                    apply to their claims.
                    
          We  have  explained  the circumstances  under  which  a
statute of limitations period may be equitably tolled:
          The  equitable  tolling doctrine  applies  to
          relieve  a  plaintiff from  the  bar  of  the
          statute of limitations when he has more  than
          one  legal  remedy  available  to  him.   The
          statute is equitably tolled if (1) pursuit of
          the initial remedy gives defendant notice  of
          plaintiffs  claim, (2) defendants ability  to
          gather  evidence  is not  prejudiced  by  the
          delay, and (3) plaintiff acted reasonably and
          in  good  faith.  The statute is tolled  only
          when  the  initial remedy  is  pursued  in  a
          judicial or quasi-judicial forum.[36]
          
We consider each requirement in turn.
                    i.   The Krauses sufficiently allege that the
                         defendants had notice of their claims.
          The  Borough and the individual defendants  argue  that
the  Krauses fail to satisfy the notice requirement for equitable
tolling.  We are not persuaded by their reasoning.
          The  Borough  argues that it was not on notice  of  the
claims  in the Krauses complaint because the claims in this  case
are  distinct  from those the Krauses made in their  prior  case.
Specifically, the Borough argues that the Krauses appeal  to  the
BOAA  included  neither  a  demand for damages  nor  an  argument
regarding a change to an easement.  The Borough also asserts  the
case  was  not  an  appeal  of the approval  of  the  plat.   But
equitable  tolling does not require that the initial and  current
relief sought be identical.37  The Krauses two cases are based on
the  same  underlying facts and issues, all of which involve  the
Boroughs  approval  of  the Christiansens  plat.   Moreover,  the
Krauses claims for declaratory and injunctive relief against  the
Borough  are  very similar to claims they raised in  unsuccessful
efforts  to  obtain  relief  elsewhere.   We  conclude  that  the
differences  between  this  case  and  the  prior  one  are   not
sufficient  to  defeat the notice requirement  of  the  equitable
tolling doctrine.
          The individual defendants reason that they were not  on
notice  of  the prior case because they were not parties  to  it.
This  argument  cannot defeat the motion to  amend  because  when
considering  whether  an  amendment is  futile,  our  court  must
presume  all factual allegations of the complaint to be true  and
[make] all reasonable inferences . . . in favor of the non-moving
party.38  The Krauses alleged in their amended complaint that they
attempted  to  negotiate with the defendants.  We must  read  the
complaint  as alleging that all of the defendants, including  the
individual property owners, were engaged in negotiations and were
aware of the pending case before the BOAA.  Because the complaint
allows  the inference that the Krauses gave notice to all of  the
defendants, the law requires that the Krauses be given the chance
to prove this allegation.39
                    ii.  There  is  no indication that delay  has
                         prejudiced the defendants such that  the
                         Krauses   claims  cannot  be   equitably
                         tolled.
          No  party  argues that the delay in filing the  current
case prejudiced any of the defendants.  Therefore, we must assume
for  purposes of reviewing dismissal of the complaint and  denial
of  the motion to amend the complaint that the Krauses could meet
the second requirement for equitable tolling.
                    iii. The  defendants did not  show  that  the
                         Krauses failed to act reasonably and  in
                         good faith.
          The Borough argues that the Krauses initial pursuit  of
an  alternative  remedy  was not reasonable.   Specifically,  the
Borough   contends  that  by  approaching  non-judicial   Borough
officials,  the Krauses attempted to influence the outcome  of  a
judicial determination by involving the legislative and executive
branches  of government.  The Krauses contend that they acted  in
good faith.
          After the Krauses learned that the final plat had  been
recorded  without  the  conditions they had  insisted  upon,  the
Krauses  contacted the Borough Manager and other members  of  the
executive branch about their concerns.40  The Krauses met with the
Borough Manager on December 18, 2002 to voice their objections to
the  recorded plat.  In response to their complaints, the Borough
Manager told them he would have the Acting Planning Director, Ron
Swanson,  look  into their concerns.  Swanson promptly  met  with
them  and  requested additional documents, which  they  provided.
The  Krauses  believed that the investigation was  ongoing  until
they received a letter from Borough Manager Duffy dated March  3,
2003,  stating  that the plat met all of the conditions  required
for  Platting  Board  approval and declaring  the  administrative
review of this platting action is closed.
          Jean  Krause  addressed the Borough Assembly  the  next
day.   The joint affidavit the Krauses filed in support of  their
motion  to  amend  states that Mayor Tim  Anderson  and  Assembly
Member  Talis Colberg heard Ms. Krauses presentation  and  stated
that  they  wanted  to  meet with the Krauses  to  discuss  their
concerns.  On March 6, 2003, the Krauses met with the Mayor,  the
Borough  Manager, Mr. Swanson, Mr. Colberg and the Deputy Borough
Attorney.   According to the Krauses, the Borough representatives
proposed negotiations, and the Krauses agreed to participate.  On
March  13, 2003, the Krauses wrote two letters.  The first  asked
Borough  Manager Duffy to reconsider his March 3, 2003,  decision
to  close  the  administrative review  of  their  concerns.   The
Krauses never received a response to this request.  In the second
letter,  the  Krauses reiterated their willingness to  engage  in
negotiations with the Borough.
          The  Krauses appealed the Borough Managers decision  to
the  BOAA on March 24, 2003, but the Krauses and the Borough both
requested stays of that appeal so they could continue with  their
negotiation, mediation, and settlement efforts.  On July 3, 2003,
the  Borough  and  the  Krauses signed  a  negotiated  settlement
agreement.  According to the Krauses, that agreement fell through
when the Christiansens objected to some of its terms, calling  it
a bogus settlement agreement and declaring, [t]his settlement has
been stopped as of now in correspondence directed to the Platting
Board dated on or about September 17, 2003.
          Despite  the Christiansens rejection of the  settlement
agreement,  the  Krauses wrote Borough Manager  Duffy  about  the
Boroughs failure to fulfill its obligations under that agreement.
He  offered  the  Krauses two options:   proceed  with  the  BOAA
hearing or attempt mediation.  On November 13, 2003, the Krauses,
the  Christiansens  and the Borough all signed  an  agreement  to
mediate.   The  mediation  continued  through  January  2004  and
culminated in a second settlement agreement but the parties again
encountered  difficulty when they attempted to execute  it,   and
further  mediation efforts reached an impasse.  The BOAA  entered
its  decision  on  April  1,  2005,  concluding  that  it  lacked
jurisdiction  to hear the Krauses appeal of the Borough  Managers
letter.   The Krauses appealed the BOAAs decision to the superior
court  on  April  27, 2005, and the superior court  affirmed  the
BOAAs decision on March 12, 2007.
            On  this record, we cannot conclude that the  Krauses
acted  inappropriately  or  in  bad  faith  by  contacting  local
officials  or  accepting  offers to negotiate  and  mediate  this
dispute.   Furthermore,  though the BOAA  dismissed  the  Krauses
appeal on jurisdictional grounds  and Judge Cutler affirmed  that
decision,  there  was no suggestion in either  opinion  that  the
Krauses arguments were frivolous or malicious.41
                    iv.  The  Krauses made the necessary  showing
                         of  pursing  relief in a  quasi-judicial
                         forum.
          The  fourth requirement for equitable tolling  is  that
the  plaintiff  initially sought relief in a judicial  or  quasi-
judicial  governmental forum.42  Judge White concluded  that  the
Krauses claims were time-barred for two reasons relating to  this
factor.   First,  Judge  White seems  to  have  agreed  with  the
Boroughs argument that collateral estoppel bars the Krauses  from
asserting  that the Borough Manager is a quasi-judicial  forum.43
The  Boroughs  collateral  estoppel  argument  stems  from  Judge
Cutlers  decision denying the Krauses BOAA appeal.  In  order  to
establish an issue, the doctrine of collateral estoppel  requires
that the parties and the issues litigated in the second action to
be  identical  to  those involved in the first  action.44   Judge
Cutlers  decision did not address the equitable tolling doctrine;
it considered whether the BOAA had jurisdiction over an appeal of
the  Borough Managers letter, and concluded that it did not.  The
decision  does observe that the Borough Manager has no  authority
to   act  as  a  judge  or  quasi-judicial  officer,  but   those
observations  support Judge Cutlers conclusion that  the  Borough
Managers  letter was not an appealable order; she did not  decide
whether  the  Borough  Manager was  a  quasi-judicial  forum  for
equitable tolling purposes.
          The  issue to be decided in the second action   whether
the  Borough  Manager is a quasi-judicial forum for  purposes  of
equitable  tolling   is different than the  issue  in  the  first
action  whether the BOAA had jurisdiction to hear an appeal  from
the  Borough Managers letter.  Therefore, the Boroughs collateral
estoppel argument is unavailing.
          Judge  Whites  second  reason for denying  the  Krauses
motion  to  amend  was that their attempt to seek  quasi-judicial
          relief through the BOAA . . . was untimely.   The court did not
elaborate on this reason, and we believe it is susceptible to two
meanings.   First,  the  Borough and  the  individual  defendants
argued  in  the  superior  court that the  Krauses  waived  their
equitable tolling argument by failing to raise it in response  to
the  motion to dismiss their complaint.  If the courts  reference
to  timeliness  referred to the argument that the Krauses  should
have raised the doctrine of equitable tolling when the motion  to
dismiss  was  being decided, it overlooks that the  courts  order
stated, [i]f Plaintiffs can assert facts which would toll the two-
year statute of limitations, the court will consider a motion  to
amend Plaintiffs complaint.
          The other possible interpretation of Judge Whites order
is   that  the  reference  to  timeliness  reflects  the   courts
conclusion  that  the Krauses could not rely on the  doctrine  of
equitable  tolling  because they did not file their  BOAA  appeal
within  fifteen days from the date they learned of  the  Platting
Boards decision.45  If this was the courts reasoning, it reflects
a  misapplication  of the equitable tolling doctrine.   Equitable
tolling  is  available  in  situations  where   plaintiffs   have
multiple legal remedies available to them.46  Rather than require
a  plaintiff  to  simultaneously pursue separate  remedies,  this
doctrine tolls the statute of limitations on one remedy while the
plaintiff pursues an alternate remedy.47  If the plaintiffs first
attempt  to  obtain relief fails, the plaintiff  can  pursue  the
other remedy based on the same right or claim.48  The statute  of
limitations  is  thus tolled during the pendency of  the  initial
defective action.  A plaintiffs second action is certainly timely
when,  as  in  this case, it is filed before the  un-tolled  time
exceeds the applicable statute of limitations period.49
           The Krauses equitable tolling argument does not depend
upon  whether  their  appeal to the  BOAA  was  timely  filed  or
successful.  The issue is whether the Krauses efforts  to  obtain
relief  from the BOAA tolled the one-year or two-year  limitation
periods  for the claims in their amended complaint.   As  already
explained, we believe the Krauses amended complaint alleges facts
that,  if  proven,  satisfy  the  first  three  elements  of  the
equitable  tolling doctrine  notice of claims, lack of prejudice,
and good faith.50  As for the requirement that the Krauses pursued
their initial relief in a judicial or quasi-judicial governmental
forum,  the Borough, the Christiansens, and individual defendants
only  argue  that  the  Borough Manager is not  a  quasi-judicial
governmental  forum; they do not contest the BOAAs  status  as  a
quasi-judicial  governmental forum.  The  Krauses  pursued  their
appeal  with  the  BOAA  long before the statute  of  limitations
expired on any of the claims in their amended complaint.51  If the
Krauses ultimately prove the elements of equitable tolling,  then
the  statute  of  limitations was tolled during the  pendency  of
their  action  before the BOAA and the claims  in  their  amended
superior court complaint are not time-barred.52
          Because the doctrine of equitable tolling may toll  the
statute  of  limitations  on the claims in  the  Krauses  amended
complaint,  it was an abuse of discretion to deny them  leave  to
amend.
               b.   The  superior  court  did  not  rule  on  the
                    Krauses equitable estoppel argument.
                    
          The  Krauses motion for leave to amend their  complaint
also argued that the doctrine of equitable estoppel prevented the
appellees  from relying on the statute of limitations to  dismiss
their claims.  They cite Gudenau & Co. Inc. v. Sweeney Insurance,
Inc.,53 in support of this argument.
          In Gudenau, we affirmed the superior courts ruling that
the  plaintiff  failed  to  satisfy  the  elements  of  equitable
tolling.54  But we also said that the courts inquiry does not end
with that conclusion; a plaintiff who is aware of the elements of
his  or  her  cause of action, but fails to file suit within  the
limitations  period, may still be protected  if  he  or  she  was
induced  by  defendants words or conduct to postpone filing  suit
until the limitations period has expired.55
          Here,  the  superior courts order did not  address  the
Krauses argument that misrepresentation(s) by the Borough  should
equitably  estop  it from relying on the statute of  limitations.
We  are  unable to assess the merits of this argument because  it
entails  questions  of fact.56  The Krauses are  entitled  to  an
opportunity to prove this defense to the statute of limitations.
V.   CONCLUSION
          We  AFFIRM  the dismissal of the Krauses constitutional
claims  for  damages but REVERSE the courts order dismissing  the
Krauses  constitutional  claims for  declaratory  and  injunctive
relief.  We also REVERSE the order denying the Krauses motion for
leave to amend their complaint and REMAND for further proceedings
consistent with this opinion.
_______________________________
     1     Because the superior court granted a motion to dismiss
the  Krauses complaint, we accept all factual allegations in  the
complaint as true.  See Catholic Bishop of N. Alaska v. Does 1-6,
141  P.3d 719, 722 (Alaska 2006) (citing Guerrero v. Alaska Hous.
Fin. Corp., 6 P.3d 250, 253 (Alaska 2000)).

     2    Matanuska-Susitna Borough Ordinance 15.39.030(A) grants
the BOAA authority to hear appeals from decisions of the Platting
Board.

     3     The  Krauses  complaint  did not  include  information
regarding their communications with the Borough Manager and other
Borough officials or their prior appeals to the BOAA and superior
court.

     4    Although, as described below, the Krauses complain only
of actions taken by the Borough and Carol and Norma Christiansen,
they  apparently  included the other four  individual  defendants
because  they  own  their  respective  described  properties   as
grantees  from [the Christiansens] and their properties abut  the
Krauses property.

     5     AS  29.40.190  provides, in  relevant  part,  that  an
aggrieved  person may institute a civil action against  a  person
who   violates  a  provision  of  this  chapter,  a   subdivision
regulation  adopted under this chapter, or a term, condition,  or
limitation imposed by a platting authority.

     6     We  refer to these claims and the Krauses reliance  on
AS 29.40.190 as the statute-based claims.

     7     The  individual defendants did not oppose the Boroughs
motion.   Their answer to the complaint included the  affirmative
defense  that  the  complaint failed to state a  claim  on  which
relief could be granted.

     8    117 P.3d 745 (Alaska 2005).

     9     The  Borough  also contended that the Krauses  had  an
additional alternative remedy under 42 U.S.C.  1983, which allows
any  plaintiff to obtain relief from governmental wrongs  denying
due process or equal protection.

     10    403 U.S. 388 (1971).

     11     The Krauses also seemed to argue that the court could
not  appropriately determine that remedies under 42  U.S.C.  sec.
1983 are available and adequate.

     12    The court ruled that AS 29.40.190(a) only permits civil
actions  against individuals, not a governmental entity  such  as
the Borough.

     13       The  court  noted that even if  the  Krauses  could
properly   convert   their  claim  into  an   action   under   42
U.S.C.   1983,  it still would be time barred under the  two-year
personal    injury   statute   of   limitations    codified    at
AS 09.10.070(a)(2).

     14    Jacob v. State, Dept of Health & Soc. Servs., 177 P.3d
1181, 1184 (Alaska 2008) (citing Guin v. Ha, 591 P.2d 1281,  1284
n.6 (Alaska 1979)) (citing Alyeska Pipeline Serv. Co. v. DeShong,
77 P.3d 1227, 1231 (Alaska 2003)).

     15     Brannon v. Contl Cas. Co., 137 P.3d 280, 284  (Alaska
2006)  (citing Alderman v. Iditarod Props., Inc., 104  P.3d  136,
140 (Alaska 2004)).

     16    Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719,
722  (Alaska  2006) (citing Nunez v. Am. Seafoods, 52  P.3d  720,
721(Alaska  2002); Guerrero v. Alaska Hous. Fin.  Corp.,  6  P.3d
250, 253 (Alaska 2000)).

     17     Carlson  v.  Renkes, 113 P.3d 638, 641 (Alaska  2005)
(quoting  Caudle  v.  Mendel, 994 P.2d 372,  374  (Alaska  1999))
(internal quotation marks omitted).

     18     Belluomini  v. Fred Meyer of Alaska, Inc.,  993  P.2d
1009,  1014  (Alaska 1999) (quoting Kollodge v. State,  757  P.2d
1024, 1026 (Alaska 1988)) (internal quotation marks omitted).

     19     Id. (quoting Kollodge, 757 P.2d at 1026) (alterations
in original) (internal quotation marks omitted).

     20     Miller  v. Safeway, Inc., 102 P.3d 282,  288  (Alaska
2004) (citing Bauman v. Day, 942 P.2d 1130, 1132 (Alaska 1997)).

     21     Hallam  v.  Alaska Airlines, Inc., 91 P.3d  279,  287
(Alaska  2004)  (quoting Taylor v. Johnston, 985  P.2d  460,  464
(Alaska 1999)).

     22    See Hallam, 91 P.3d at 287-88; Taylor, 985 P.2d at 464-
66.

     23     Lowell  v.  Hayes, 117 P.3d 745,  753  (Alaska  2005)
(quoting Dick Fischer Dev. No. 2 v. Dept of Admin., 838 P.2d 263,
268 (Alaska 1992)).

     24    Id. at 754.

     25    The Krauses also make an argument regarding whether the
superior  court  could  have  properly  found  that  the  alleged
constitutional   violations  were  not  flagrant.   Because   the
availability  of an alternative remedy disposes  of  the  damages
claims, we need not consider that issue.

     26     Robison  v. Francis, 777 P.2d 202, 204 & n.3  (Alaska
1989).

     27    AS 09.10.070(a) (Except as otherwise provided by law, a
person  may not bring an action . . . (2) for personal injury  or
death, or injury to the rights of another not arising on contract
and  not specifically provided otherwise . . . unless the  action
is  commenced  within two years of the accrual of  the  cause  of
action.).

     28    See AS 09.10.090 (A person may not bring an action upon
a statute for the penalty given in whole or in part to the person
who  will  prosecute for the same unless the action is  commenced
within one year after the commission of the offense.).

     29    The Krauses also argue that AS 29.40.190 (b) expresses
a  policy  of liberally treating the acts alleged in claims  made
under that statute as continuing wrongs because it provides  that
[e]ach   day   that  an  unlawful  act  or  condition   continues
constitutes a separate violation.  But that provision is intended
to  provide  a way to calculate penalties described in subsection
(a); it does not create a special tolling rule.

     30     Cf.  In  re  Adoption of Erin G., 140 P.3d  886,  888
(Alaska  2006)  (citing  State v. Dupier,  118  P.3d  1039,  1044
(Alaska 2005)).

     31     Reich  v.  Cominco Alaska, Inc., 56  P.3d  18,  25-26
(Alaska  2002)  (The  continuing  violations  doctrine  allows  a
plaintiff to establish the elements of a hostile work environment
claim   by  relying  on  incidents  that  predate  the  statutory
limitations period to prove that a hostile environment  continued
into the limitations period.).

     32     Oaksmith  v. Brusich, 774 P.2d 191, 200 n.10  (Alaska
1989)  (Under  theories of continuing trespass or nuisance,  each
harmful  act  constitutes a new cause of action  for  statute  of
limitations purposes and, therefore, the accrual of  a  cause  of
action  is not measured from the date of the initial trespass  so
as  to  bar  the entire action.  However, while later  continuing
acts may prevent the running of the statute of limitations on the
claim,  damages  cannot be recovered for the initial  time-barred
acts.) (internal citations omitted).

     33    Alaska R. Civ. P. 15(a).  See also Ruckle v. Anchorage
Sch. Dist., 85 P.3d 1030, 1039 (Alaska 2004) ([W]e have long held
that  leave to amend a pleading should be freely given and  that,
absent  a  showing  that  the amendment would  have  resulted  in
injustice,  a  trial  court  will be found  to  have  abused  its
discretion  in  denying  a  motion to amend.  (citing  Estate  of
Thompson  v.  MercedesBenz, Inc., 514  P.2d  1269,  1271  (Alaska
1973))).

     34     Hallam  v.  Alaska Airlines, Inc., 91 P.3d  279,  287
(Alaska  2004)  (quoting Taylor v. Johnston, 985  P.2d  460,  464
(Alaska 1999)).

     35    See Hallam, 91 P.3d at 283, 287-88 (affirming denial of
leave  to amend as not an abuse of discretion because the  claims
in  the amended complaint were preempted by federal law); Taylor,
985 P.2d at 464-66 (affirming denial of leave to amend as not  an
abuse of discretion where we determined that plaintiff could  not
make out a tort claim).

     36     Smith  v.  Thompson, 923 P.2d 101, 105 (Alaska  1996)
(quoting Dayhoff v. Temsco Helicopters, Inc., 772 P.2d 1085, 1087
(Alaska 1989)).

     37    See Beegan v. State, Dept of Transp. & Pub. Facilities,
195  P.3d 134, 142 (Alaska 2008) (citing with approval a case  in
which  the Ninth Circuit concluded that litigants need  not  seek
the  same  remedies  before both forums in  order  for  equitable
tolling  to  apply)  (citing Daviton v.  Columbia/HCA  Healthcare
Corp., 241 F.3d 1131, 1133, 1141 (9th Cir. 2001)); cf. Solomon v.
Interior Regl Hous. Auth., 140 P.3d 882, 885 (Alaska 2006) (Where
a  claim with essentially the same facts is being litigated . . .
in  the  federal courts between the same parties,  the  defendant
cannot  claim  not  to  be on notice [for purposes  of  equitable
tolling].).

     38     Belluomini  v. Fred Meyer of Alaska, Inc.,  993  P.2d
1009,  1014  (Alaska 1999) (quoting Kollodge v. State,  757  P.2d
1024, 1026 (Alaska 1988)) (alterations in original).

     39      We   note   that  the  record  on  appeal   includes
correspondence from the Christiansens dated August 28,  2003  and
March  2, 2005 reflecting their awareness of the Krauses attempts
to  get  relief  from the Borough and from  the  BOAA.   It  also
includes correspondence from the Perdues dated November 12,  2003
reflecting  their awareness of upcoming mediations and purporting
to  grant  to  the  Christiansens the  right  to  make  decisions
regarding the Perdues property.

     40     We  do  not believe this was unreasonable.  As  Judge
Cutler  noted, once the plat had been recorded, the  Borough  had
authority  to petition the platting authority to alter the  plat.
AS  29.40.120 provides in relevant part:  A recorded plat may not
be  altered  or  replatted except by the  platting  authority  on
petition  of  the  state, the borough, a public utility,  or  the
owners  of  a majority of the land affected by the alteration  or
replat.

     41    Cf. Solomon, 140 P.3d at 885.

     42    See id. at 884 ([T]he statute of limitations is tolled
only for those who initially pursue their rights in a judicial or
quasi-judicial  governmental forum.  (quoting Gudenau  &  Co.  v.
Sweeney Ins., Inc., 736 P.2d 763, 768 (Alaska 1987))).

     43     The  courts order denying the Krauses leave to  amend
their  complaint  stated that the Krauses,  may  not  argue  that
pursuit  of negotiations with the Borough Manager constitutes  an
effort  to  seek  relief  in  a quasi-judicial  forum.  (emphasis
added).

     44     Smith v. Stafford, 189 P.3d 1065, 1075 (Alaska  2008)
(quoting McElroy v. Kennedy, 74 P.3d 903, 907 (Alaska 2003)).

     45     Matanuska-Susitna Borough Ordinance 15.39.140 creates
a  fifteen-day  deadline  for filing appeals  of  Platting  Board
decisions to the BOAA.

     46     Gudenau & Co., Inc. v. Sweeney Ins., Inc.,  736  P.2d
763, 768 (Alaska 1987).

     47    Id.

     48     Fred  Meyer  of Alaska v. Bailey, 100 P.3d  881,  886
(Alaska 2004).

     49     See  Solomon v. Interior Regl Hous. Auth.,  140  P.3d
882,  885-86  (Alaska 2006) (Noting our equitable  tolling  cases
have  uniformly  given  plaintiffs second limitations  period  to
file  second  claim,  but declining to decide whether  plaintiffs
will  always  have  second  full limitations  period  for  second
claim);  Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881,  887
(Alaska  2004) (plaintiff had full statutory period to  file  his
second  claim);  Dayhoff v. Temsco Helicopters,  Inc.,  772  P.2d
1085,  1088  n.6 (Alaska 1989) (employee entitled to  benefit  of
full   statutory  period  after  circumstances  which   justified
equitable tolling abated).

     50    Gudenau, 736 P.2d at 768.

     51     At  most,  one hundred four days passed  between  the
Krauses  discovery of the recording of the plat (December  10  or
11,  2002) and their filing of an appeal with the BOAA (March 24,
2003).   Twenty-six days passed between the date the BOAA  issued
its  decision  (April  1, 2005) and the date  the  Krauses  filed
their  appeal to the superior court (April 27, 2005).  Forty-four
days  passed  between the date the superior  court  affirmed  the
BOAAs  decision (March 12, 2007) and the date the  Krauses  filed
their  complaint  in this case (April 25, 2007).   The  total  of
those  periods  is one hundred seventy-four days, far  less  than
one  year   the shortest statute of limitations period applicable
to the claims the Krauses filed in superior court.

     52     The  fact  that  the Krauses appeal  of  the  Borough
Managers  letter  to  the  BOAA  was  ultimately  unavailing   is
irrelevant.  The  applicability  of  the  doctrine  of  equitable
tolling  does not depend on the outcome of the Krauses appeal  to
the  BOAA.  Beegan  v. State, Dept of Transp. & Pub.  Facilities,
195  P.3d  134,  142-43 (Alaska 2008) (The applicability  of  the
equitable  tolling doctrine does not depend upon  the  successful
pursuit  of  an alternative remedy; it is enough that an  initial
action  be unavailing with respect to a certain form of  relief).
Whether   the  superior  court  dismissed  the  BOAA  appeal   on
timeliness,  jurisdictional, or other grounds,  the  Krauses  may
rely  on  equitable tolling if the record satisfies the  elements
of  the  doctrine.   Beegan,  195  P.3d  at  142-43;  Solomon  v.
Interior  Regl  Hous. Auth., 140 P.3d 882, 884-85 (Alaska  2006);
Fred  Meyer  of  Alaska, Inc. v. Bailey,  100  P.3d  881,  885-86
(Alaska 2004).

     53    736 P.2d 736 (Alaska 1987).

     54    Id. at 768.

     55    Id.

     56     Groseth v. Ness, 421 P.2d 624, 632 n.23 (Alaska 1966)
(To  establish  an  equitable estoppel it is generally  necessary
that  the  party seeking to assert it show that the  other  party
made   some  misrepresentation,  or  false  statement,  or  acted
fraudulently  and  that  he reasonably relied  on  such  acts  or
representations of the other party, and due to such reliance  did
not institute suit timely.).

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