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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. L Street Investments v. Municipality of Anchorage (8/23/2013) sp-6816

L Street Investments v. Municipality of Anchorage (8/23/2013) sp-6816

         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, email  

                                                                                  

         corrections@appellate.courts.state.ak.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



L STREET INVESTMENTS,                               )  

                                                    )        Supreme Court No. S-14466  

                 Appellant,                         )  

                                                    )        Superior Court No. 3AN-10-12355 CI  

         v.                                         )  

                                                    )        O P I N I O N  

MUNICIPALITY OF ANCHORAGE, )  

and ANCHORAGE DOWNTOWN                              )        No. 6816 - August 23, 2013  

PARTNERSHIP, Ltd.,                                  )  

                                                    )
  

                 Appellees.                         )
  

                                                    )
  



                 Appeal from the Superior Court of the State of Alaska, Third  

                 Judicial District, Anchorage, John Suddock, Judge.   



                 Appearances:  Christopher J. Slottee, Atkinson, Conway &  

                 Gagnon,  Inc.,  Anchorage,  for  Appellant.    Sean  Halloran,  

                                      

                 Littler Mendelson, P.C., Anchorage, for Appellee Anchorage  

                 Downtown   Partnership,   Ltd.      Deitra   Ennis,   Assistant  

                 Municipal       Attorney,      and     Dennis      Wheeler,      Municipal  

                 Attorney,       Anchorage,        for    Appellee       Municipality        of  

                 Anchorage.   



                 Before:       Carpeneti,   Chief   Justice,   Fabe,   Winfree,   and  

                                

                  Stowers, Justices.  



                  STOWERS, Justice.  


----------------------- Page 2-----------------------

I.        INTRODUCTION
  



                                                                     

                   The former Anchorage Municipal Code provided for the creation of special  



                                                                                                         

assessment districts for public capital improvements.  On June 11, 1996, the Anchorage  



Municipal Assembly (Assembly) enacted Anchorage Ordinance 96-77(S-I) to broaden  



"special  assessment  districts"  to  include  the  provision  of  services  and  to  authorize  



business improvement districts.  In 1997 the Assembly passed Anchorage Ordinance  



97-51, which created the Downtown Improvement District (District) for a period of three  



years.    When  passing  this  ordinance,  the  Assembly  amended  the  boundaries  of  the  



                           

proposed District to exclude some properties on K and L Streets.  The building at 420  



                                                  

L Street, the property owned by  appellant L Street Investments, was in the original  



                                                                                             

proposal but subsequently carved out by the Assembly.  In 2000 the Assembly extended  



the life of the District for ten years.  Beginning in 2009, the Anchorage Downtown  



Partnership canvassed businesses hoping to extend the life of the District again and  



                                                                                                         

expand the District to include businesses between I and L Street.  After the majority of  



business owners in the proposed District approved the extension and expansion, the  



Assembly extended the life of the District and expanded it to include businesses between  



I and L Streets, including the building at 420 L Street.  



                                                                                          

                   L Street Investments filed a complaint arguing:  (1) Section 9.02(a) of the  



                                                                                           

Municipality of Anchorage's Charter does not authorize the Municipality to finance  



                                                                                    

services within the District by an assessment - rather, the Municipality can finance  



                                                                                       

services only by a tax levy; and (2) the District is a "service area," and AS 29.35.450(c)  



                    

prohibits the expansion of a service area unless a majority of voters in the area to be  



added  vote  in  favor  of  expanding  the  service  area.    The  Anchorage  Downtown  



                                                                                          

Partnership intervened, and all parties filed cross-motions for summary judgment.  The  



                       

superior  court  granted  summary  judgment  to  the  Municipality  and  the  Anchorage  



Downtown Partnership.  We affirm.  



                                                             -2-                                                      6816
  


----------------------- Page 3-----------------------

II.      FACTS AND PROCEEDINGS 
 



                   In  late  1994  and  early  1995,  a  group  of  Anchorage  business  and  civic  



                                                                                                       

leaders  formed  the  Downtown  Action  Committee  to  develop  a  vision  to  revitalize  



                                                                                            

downtown Anchorage.  In April 1995 the Committee decided to develop  a "business  



improvement district" to provide services that enhanced the beauty, safety, convenience,  



and vibrancy of downtown Anchorage.  In January 1996 the Committee incorporated  



under the name Anchorage Downtown Partnership, Ltd. (Partnership).   



                   At the time, Title 19 of the Anchorage Municipal Code provided for the  



                                                                                            

creation of special assessment districts for capital improvements; it did not provide for  



the creation of districts for public services such as a business improvement district.  On  



                                                                                             

June  11,  1996,  at  the  urging  of  the  Partnership,  the  Assembly  enacted  Anchorage  



                                                                                                       

Ordinance 96-77(S-I) to broaden "special assessment districts" to include the provision  



                                                                                                 1 

                                                                                                    The Anchorage  

of public services, thereby authorizing business improvement districts. 



Municipal Code now states:  



                   A    special      assessment        district,     including       a    business  

                   improvement  district,  may  be  initiated  for  public  capital  

                   improvements or for public services as specifically defined  

                  by the ordinance creating the assessment district, as provided  

                        

                                       [2] 

                   in this section.  



         1	       Anchorage Code Ordinance (ACO) 96-77(S-I) (1996).  



         2        Anchorage  Municipal  Code  (AMC)  19.10.020(A)  (1996).    Subsection  



(A)(2)  provides:  



                  Assessment districts for public services may be initiated only  

                                                                          

                   for public services specified in this subsection . . . .  



                   a.	      Maintenance, repair and upkeep of any public capital  

                                                                              

                            improvement created by an assessment district;  



                                                                                                      (continued...)  



                                                          -3-	                                                   6816
  


----------------------- Page 4-----------------------

                                                                                  

                                                            

A special assessment district can enhance but not replace city services already provided:  



                   Assessment districts for services shall provide an enhanced  

                   or  supplemental  public  service  or  new  public  service  not  

                   provided by the municipality generally.  The establishment of  

                   an    assessment         district     for   services       shall    not    operate  

                   unilaterally or by implication as a substitute for or to reduce  



          2(...continued)  



                   b.        Maintenance,   including  snow  removal/disposal  and  

                             dust  suppression,  cleaning  and  beautification  and  

                             decoration   of   public   places,   areas,   facilities   and  

                             rights-of-way such as:  



                             (1)      Streets,  roads,  alleys,  parkways, street  

                                                                                         

                                      lighting,  curbs  and  gutters,  driveways,  

                                      curb      cuts     and     parking        areas     and  

                                      facilities;  



                             (2)      Sidewalks,  trails  and  other pedestrian  

                                                                                 

                                      ways and facilities;  



                             (3)      Parks       and      recreational          areas and  

                                                                                           

                                      facilities;  



                   c.        Visitor and tourism public services;  

                        



                   d.        Security   services         not   including   law enforcement  

                                                                                        

                             services;  



                   e.        Promotion  of  public  events  within  the assessment  

                        

                             district and promotion of the assessment district itself  

                             as an area of enhanced public services.  



                   f.        Other public services closely similar to those listed in  

                                                                                               

                             subsections A.2.a. through A.2.e. of this subsection  

                                               

                             designed       to    promote        the    vitality,     stability     and  

                             improvement of the assessment district as a whole.  



                                                            -4-                                                      6816
  


----------------------- Page 5-----------------------

                    or eliminate the nature or extent of services provided by other   

                               [3]        

                    means.  



                                                   

A special assessment district can be initiated either by a petition of property owners in  



that  district  or  by  the  Assembly,  but  it  "may  be  created  or  extended  only  with  the  



                                                                                    

approval of the property owners who would bear more than 50 percent of the estimated  



                                                      4  

                                                                                                 

cost of the improvement or service."   The Assembly then holds a public hearing "upon  

the necessity for the proposed improvement or service."5 After the public hearing, the  



Assembly decides whether to proceed with the proposal:  



                                                               

                    [T]he assembly shall adopt an ordinance determining either  

                                               

                    to proceed or not to proceed with the proposed improvement  

                                       

                    or  service.  The  ordinance  to  proceed  shall  find  that  the  

                    improvement  or  service  is  necessary,  of  benefit  to  the  

                    properties  to  be  assessed,  and  that  the  petition  for  the  

                                                                                     

                    improvement or service has been approved by sufficient and  

                    proper   petitioners.   The   findings   of   the   assembly   are  

                                     [6]  

                    conclusive.  



                    In 1997 the Assembly passed Anchorage Ordinance 97-51, which created  



                                                                                   7  

Assessment District 1SD97 for a period of three years.   When passing AO 97-51, the  



                                                                                                           

Assembly amended the boundaries of the proposed Assessment District to exclude some  



properties on K and L Streets.  The building at 420 L Street, the property owned by  



                                                                               

L Street Investments (L Street), was included in the original proposal but subsequently  



carved out by the Assembly.  



          3         AMC 19.10.020(B).  



          4         AMC 19.20.010(B).  



          5         AMC 19.20.040.  



          6         AMC 19.20.050.  



          7         ACO 97-51 (1997).  



                                                               -5-                                                         6816
  


----------------------- Page 6-----------------------

                   The  boundaries  of  the  District  were  Gambell  Street  to  the  east,  Ninth  



Avenue to the south, and First Avenue to the north; the western boundary ran from Ninth  



                                                                      

Avenue to Sixth Avenue on K Street and from Sixth Avenue to Second Avenue on  



I Street.  The enumerated powers of the District were:  



                                                                                   

                   A.	      Maintenance,  repair  and  upkeep  of  public  capital  

                            improvements located in the area of the assessment  

                            district;  



                                                            

                   B.	      Maintenance,          snow       removal,        dust     suppression,  

                            cleaning,  beautification,  and  decoration  of  public  

                            parks, places and pedestrian rights-of-way;  



                   C.	      Visitor and tourism services;  



                   D.	      Security services, but not including law enforcement  

                            services;  



                   E.	      Promotion         of    the    assessment         district     and     the  

                            promotion  of  public  events  within  the  assessment  

                            district; and  



                   F.	      Other  closely  similar  public  services  promoting  the  

                            vitality, stability and improvement of the assessment  

                                       [8] 

                            district.  



                   The District collected assessments for its services based on the value of  



each property within its boundaries:  



                   Each assessable parcel within . . . Assessment District 1SD97  

                                                                   

                   shall  be  assessed  at  a  mill  rate  not  to  exceed  1.5  mills  of  

                                                           

                   assessed value ($1.50 per $1,000 of assessed value) up to and  

                                                                                            



         8         ACO 97-51  4 (1997); see also ACO 2010-58(S)  5 (2010) (extending  



the life of the District for an additional ten years); ACO 2000-98  4 (2000) (extending  

                                                        

the life of the District for ten years).  



                                                           -6-	                                                    6816  


----------------------- Page 7-----------------------

                    including $10,000,000 plus $100 per $1,000,000 of assessed   

                                                                   [9] 

                    value in excess of $10,000,000.        



Government-owned  properties,  churches,  and  non-profit  religious,  charitable,  or  

educational organizations were exempt from the assessments.10  Further, qualified owners  



                                                                          

of single-family, owner-occupied residences who timely applied for an exemption were  



                                            11  

also exempt from assessment.                      

                    In  2000  the  Assembly  extended  the  life  of  the  District  for  ten  years.12  



                                                                                           

Starting in 2009, the Partnership canvassed property owners about extending the life of  



                                           

the District again, as well as expanding the District to include businesses between I and  



                                                                                                     

L Streets.  The Partnership circulated petitions to property owners within the original  



                                   

District for the owners to indicate whether they were in favor of continuing the District  



                                                  

and expanding it or whether they wished to terminate the District.  The Partnership also  



                                                                                                         

circulated petitions to property owners in the proposed expansion area for those owners  



to  indicate  whether  they  were  in  favor  of  or  opposed  to  extending  the  District.  



Responses  showed  that  owners  of  316  properties  -  representing  62%  of  the  total  



                                                                                      

assessment value of the District including the proposed expansion area - supported  



reenactment and expansion.  Owners representing 12% of the total annual assessment  



                                                                   

stated they opposed the continuation of the district.  The remaining property owners,  



representing  approximately  26%  of  the  total  annual  assessment,  did  not  return  the  



                                                                                          

petitions.  Out of the 63 properties in the proposed expansion area that returned petitions,  



                                           

33 opposed being added to the District; those in opposition comprised a total annual  



          9         ACO 97-51  5; see also ACO 2010-58(S)  6; ACO 2000-98  5.  



          10        ACO 97-51  7; see also ACO 2010-58(S)  8; ACO 2000-98  6.  



          11        ACO 97-51  7; see also ACO 2010-58(S)  8; ACO 2000-98  6.  



          12        ACO 2000-98.  



                                                              -7-                                                        6816
  


----------------------- Page 8-----------------------

                                                 13  

assessment of $67,615, or 43.2%.    Thirty properties in the expansion area with a total  



annual assessment of $89,057, or 56.8%, were in favor of the expansion.   



                    On  September  28,  2010,  the  Assembly  passed  AO  No.  2010-58(S)  



                                                           

(Ordinance), which extended the life of the District and expanded it to include I Street  



                                                      14  

and L Street north of Ninth Avenue.                       This included L Street Investment's building,  



420 L Street, which had an estimated assessment of $10,962 annually.  



                    L Street filed a complaint for declaratory judgment in the superior court  



                                                                          

against the Municipality on November 24, 2010.  L Street argued:  (1) Section 9.02(a)  



of  the  Municipality  of  Anchorage's  Charter  does  not  authorize  the  Municipality  to  



finance services within the District by an assessment - rather, it can finance services  



                                                                

only by a tax levy; and (2) the District is a "service area," and AS 29.35.450 prohibits  



                                                                                                          

the expansion of a service area unless a majority of voters in the area to be added vote  



in favor of expanding the service area.  The Partnership intervened.  All parties filed  



                                                                                         

cross-motions for summary judgment, and oral argument was held before Superior Court  



Judge  John  Suddock  on  January  18,  2011.    The  superior  court  granted  summary  



judgment to the Municipality and the Partnership and denied L Street's motion.  The  



                                       

court  concluded  that  AS  29.35.450,  which  governs  service  areas  such  as  parks  and  



                                            

recreation service areas, does not govern the District because the District "has a different  



                                                                    

scope and administrative structure." The court also concluded "that [S]ection 9.02 of the  



          13        It   is  not   clear  from  the  record  if  some  of  the  property  owners  in  the  



expansion area did not return their petitions.  Further, the calculation of 43.2% was  

determined by summing the assessment value of those owners opposed ($67,615) and  

dividing by the total assessment value of the expansion area ($156,672).  This total  

assessment value  and  the  petition  totals  are  different from  the  figures  the  appellant  

                                                                                               

provided  in  its  brief  because  the  appellant  overlooked  two  petitions  opposed  to  

                                                                                       

expansion from Platinum Jaxx and an office building on Sixth Avenue.  



          14       ACO 2010-58(S).  



                                                             -8-                                                      6816
  


----------------------- Page 9-----------------------

Charter does not prohibit assessments for services within the District."  The court entered  



final judgment in favor of the Municipality and the Partnership.  



                    L Street appeals.           



III.	     DISCUSSION  



          A.	       Standard Of Review  



                                                                                                          

                   A  grant  of  summary  judgment  is  reviewed  de  novo,  "drawing  all  



                   

permissible  factual  inferences  in  favor  of,  and  viewing  the  facts  in  the  light  most  



                                                          15  

                                                                                               

favorable to, the non-prevailing party."                      "We affirm grants of summary judgment if  



                                                                                 

there  are  no  genuine  issues  of  material  fact  and  the  prevailing  party  is  entitled  to  



                                           16  

                                               We apply our independent judgment when interpreting  

judgment as a matter of law." 



                                                                        17  

statutes, municipal charters, and municipal codes.                           



          B.	       The Municipality of Anchorage Has The Authority To Fund Special  

                    Services By Assessment.  



                                                                                                 18  

                    The Municipality is a unified home rule municipality.    Under article X,  



                                                                                                             

section 11 of the Alaska Constitution, "A home rule borough or city may exercise all  



          15       Bradshaw v. State, Dep't of Admin., Div. of Motor Vehicles , 224 P.3d 118,  



 121-22 (Alaska 2010).   



          16	      Id. at 122.  



          17	      Municipality of Anchorage v. Repasky , 34 P.3d 302, 305 (Alaska 2001).  



          18       AS 29.06.190(a) ("A borough and all cities in the borough may unite to  



form a single unit of home rule government . . . ."); AS 29.06.410 ("A municipality  

                                                                                                     

unified  under  AS  29.06.190-29.06.410  has  all  powers  (1)  not  prohibited  by  law  or  

charter; and (2) granted to a home rule borough."); AS 29.71.800(24) (defining "unified  

municipality" as "a municipality unified in accordance with AS 29.06.190-29.06.410");  

                              

Anchorage  Municipal  Charter    1.01,  1.02  (naming  municipality  and  defining  its  

                                                                                                             

boundaries); Anchorage Municipal Charter  3.01 ("The municipality may exercise all  

                                                                          

legislative powers not prohibited by law or by this Charter.").    



                                                             -9-	                                                     6816
  


----------------------- Page 10-----------------------

                                                                           19  

legislative powers not prohibited by law or charter."                          Section 3.01 of the Municipality's  



Charter  similarly  states,  "The  municipality  may  exercise  all  legislative  powers  not  



prohibited by law or by this Charter."  The Commentary to this section reads:  



                    By virtue of this section the new government will be a home  

                    rule   municipality.      This            section      brings   all      allowable  

                                                                                           

                    legislative  power  from  the  state  level  to  the  local  level.  

                                                                      

                    However, Sections 9.01 and 9.02, and other provisions of the  

                    Charter  calling  for  voter  approval  of  government  action,  

                    reserve  to  the  people  the  basic  power  to  determine  if  and  

                                                                                      [20] 

                    when the municipal power will be exercised.                              



Although the legislative powers of the Municipality may be limited by state law or the  



                                                                                            

Municipal Charter, the legislative powers are not dependent on "specific grants of power  



                                    21  

                                        Instead, the Municipality derives its legislative power from  

from a state legislature." 



                                                                                

article X, section 11 of the Alaska Constitution. Thus, based on the plain language of the  



                                          

Alaska Constitution and the Anchorage Municipal Charter, the District has the authority  



          19        Alaska Const. art. X,  11.   



          20        Commission  Commentary  on  Anchorage  Municipal  Charter:  An  aid  to  



legislative history, to assist in the interpretation of the Charter document,  3.01 (Aug.  

20, 1975).  



          21       Jefferson  v.  State ,  527  P.2d  37,  42  (Alaska  1974); see  also  Liberati  v.  



Bristol Bay Borough , 584 P.2d 1115, 1120 n.19 (Alaska 1978) ("Dillon's rule . . . states:  

            

[a] municipal  corporation  possesses  and  can  exercise  the  following  powers  and  not  

others.  First,  those  granted  in  express  words;  second,  those  necessarily  implied  or  

                                                                                                                

necessarily incident to the powers expressly granted; third, those absolutely essential to  

                                                                                                

the  declared  objects  and  purposes  of  the  corporation  not  simply  convenient,  but  

                                                                                     

indispensable.    The  minutes  of  the  constitutional  convention  reveal  that  the  liberal  

                                                                                                         

construction  clause  of  Article  X,  Section  1  was  intended  to  assure  that  general  law  

municipalities, as well as those having home rule powers, would not be governed by  

                                                                                                         

[Dillon's] rule, but would have their powers liberally interpreted.").  



                                                             -10-                                                       6816
  


----------------------- Page 11-----------------------

to impose an assessment on property owners within the District so long this action is not       



limited by state law or the Charter.  



                                             

                           L  Street  argues  that  because  the  Ordinance  imposes  an  assessment  for  



                                                                                                                    

services, the Ordinance is invalid because it finances those services in a manner contrary  



to Section 9.02(a) of the Municipality's Charter.  Section 9.02(a) of the Charter states:  



                                    

                           The   Assembly   by   ordinance   may   establish   assessment  

                           districts  to  provide  and  finance  capital  improvements  by  

                                                                                                                              

                           means of an assessment, or services by means of a tax levy.  

                                    

                           The assessment or levy shall be proportionate to the benefit  

                           received from and the burden imposed upon the improvement  

                           or  service.  The  Assembly  by  ordinance  shall  prescribe  

                           uniform criteria for allocating the cost of the improvement or   

                           service within an assessment district.  



L Street argues that the Charter does not allow the Municipality to impose an assessment   



to finance services in the District.                                   Instead, L Street contends the Charter specifically           



provides   that   the   Municipality   can   only   use   an   assessment   to   finance   capital  



                                                                                                                             

improvements and can only use a tax levy to finance services.  Thus, L Street considers  



                                                                                                                                                   

Charter Section 9.02 to be a limit on the Municipality's home rule power.  We disagree.  



                                                               

                           We conclude that Section 9.02(a) does not preclude the Municipality from  



                                                                                                                                                    

levying an assessment for services because the language in Section 9.02(a) is permissive  



                                                                                                               

rather than mandatory, and does not expressly prohibit the Municipality from using an  



                                             

assessment to finance services.  The Municipality, as a unified home rule municipality,  



enjoys  broad  authority  to  exercise  all  legislative  powers  not  prohibited  by  law  or  



                22 

                                                                                                                                                         

Charter.             The use of assessments to finance services is not prohibited by law or Charter  



and is therefore a valid exercise of the Municipality's authority.  



             22            Alaska Const. art. X,  11.   



                                                                                  -11-                                                                                   6816  


----------------------- Page 12-----------------------

                     1.	       The plain language of the Anchorage Municipal Charter does  

                               not forbid the funding of special services by assessment.  



                    In interpreting municipal charters, "we are guided by the rules of statutory       

                      23  L Street argues, "The Charter must, if possible, be construed to give  

construction."                                                                                            



effect  to  every  word  and  phrase,  and  a  construction  that  renders  any  portion  of  the  

                                                                                    



                                                               24  

Charter superfluous should be rejected."                           However, the Commentary to the Charter  



specifically states, "As used in this Charter, 'may' is permissive, 'shall' is mandatory,  



                                                                      25  

and 'may not' or 'shall not' are prohibitive."                            The first sentence of Section 9.02(a)  



states, "The assembly by ordinance may establish districts to provide and finance capital  

           



improvements  by  means  of  an  assessment,  or  services  by  means  of  a  tax  levy."  



                                                                      

(Emphasis added.)  L Street interprets Section 9.02(a) as providing the Municipality with  



                           

the discretion to create and finance districts.  Should the Municipality choose to create  



a  district,  L  Street  interprets  Section  9.02(a)  as  mandating  the  manner  in  which  the  



district is financed - an assessment for capital improvements or a tax levy for services.  



                                                     

                    The Partnership and the Municipality, in contrast, argue that "[n]othing in  



                                                                                          

this provision precludes the Municipality from creating a special assessment district to  



furnish services."  They note that the last sentence of Section 9.02 provides for the  



creation of assessment districts for services by stating, "The [A]ssembly by ordinance  



                        

shall prescribe uniform criteria for allocating the cost of the improvement or service  



          23	        City & Borough of Sitka v. Int'l Bhd. of Elec. Workers, Local Union 1547,  



653 P.2d 332, 335-36 (Alaska 1982) (internal citation omitted).  



          24        See Mech. Contractors of Alaska, Inc. v. State, Dep't of Pub. Safety,  



91 P.3d 240, 248 (Alaska 2004).  



          25        Commission Commentary on Anchorage Municipal Charter:  An aid to  



legislative  history,  to  assist  in  the  interpretation  of  the  Charter  document,    17.11  

(Aug. 20, 1975).  



                                                               -12-	                                                        6816
  


----------------------- Page 13-----------------------

within  an  assessment  district."  (Emphasis  added.)    Further,  they  argue  that  "the  



                                                                                                                                       

permissive 'may' cannot lawfully be construed as a prohibition on any other manner of  



                                                                                   

funding services" because "[w]here no Charter provision and no statute provides that the  



                                                                                                                                               

Municipality  'may  not'  or  'shall not'  fund  services  with  an  assessment, there  is  no  



prohibition on doing so."  



                        This  argument  is  compelling.    Under  both  article  X,  section  11  of  the  



Alaska Constitution and Section 3.01 of the Municipality's Charter, the Municipality  



                           

"may exercise all legislative powers not prohibited by law or charter."  Section 9.02 of  



the  Charter  contains  no  prohibitory  language,  and  the  Commentary  to  the  Charter  



                                                                                                                                    

provides   instruction   on   how   to   interpret   the   Charter,   undermining   L   Street's  



interpretation.    L  Street's  interpretation  of  the  permissive  "may"  would  create  a  



prohibition where none exists.  



                       L Street also contends that the basic principles of statutory construction,  

                                                                                                       26 "requires the Municipality  

                                                                                                                            

particularly the maxim expressio unius est exclusio alterius,  



to finance services in the District by use of a tax levy, instead of an assessment," and that  

                                                                           



the Municipality's interpretation "renders  9.02(a) a nullity."  L Street argues that the  



                                                            

specification in Section 9.02 of a tax levy to finance services "supports the conclusion  



that all other means of financing, including by assessment, are not allowed."  



                        The superior court concluded that applying the maxim expressio unius est  



exclusio alterius was "inappropriate" because "there is no categorical listing of items  



            26          This maxim is a canon of statutory construction meaning "where certain     



things are designated in a statute, 'all omissions should be understood as exclusions.' "     

Puller v. Municipality of Anchorage , 574 P.2d 1285, 1287 (Alaska 1978) (quoting 2A  

C. S 

       ANDS , SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION  47.23, at 123 (4th  

ed. 1973)).   



                                                                        -13-                                                                   6816
  


----------------------- Page 14-----------------------

attended  by  a  telling  omission"  in  Section  9.02(a).    We  agree.    The  United  States  



Supreme Court has stated:  



                                                                                             

                   As we have held repeatedly, the canon  expressio unius est  

                                                           

                   exclusio  alterius does not apply to every statutory listing or  

                                                      

                   grouping;  it  has  force  only  when  the  items  expressed  are  

                   members of an "associated group or series," justifying the  

                   inference   that   items   not   mentioned   were   excluded   by  

                                                                             

                                                                       [27]     

                   deliberate choice, not inadvertence.  



In a different case the Supreme Court explained, "The canon depends on identifying a  



                                               

series of two or more terms or things that should be understood to go hand in hand,  



                                                    

which is abridged in circumstances supporting a sensible inference that the term left out  

must have been meant to be excluded."28  



                   Here, as the superior court concluded, financing capital improvements by  



means of an assessment and financing services by means of a tax levy are not "members  



of an associated group or series" that "justify[] the inference that items not mentioned  



                                                      29  

                                                          This is particularly apparent when considering  

were excluded by deliberate choice."                              



that the Commentary to the Charter instructs that the word "may," which  is  used in  

                                                                                                                   



Section 9.02 to describe how the Municipality can finance capital improvements and  



                                       30  

services,   is   "permissive."                  Applying   expressio   unius   est   exclusio   alterius   is  



inappropriate  because  the  use  of  the  word  "may"  in  Section  9.02  undermines  the  



          27       Barnhart v. Peabody Coal Co.                , 537 U.S. 149, 168 (2003) (quoting United  



States v. Vonn, 535 U.S. 55, 65 (2002)).  



          28       Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81 (2002).  



          29       Barnhart , 537 U.S. at 168 (internal quotation marks omitted).  



          30       See Commission Commentary on Anchorage Municipal Charter: An aid to  

                                                                     

legislative  history,  to  assist  in  the  interpretation  of  the  Charter  document,    17.11  

(Aug 20, 1975).  



                                                            -14-                                                      6816
  


----------------------- Page 15-----------------------

                                                                                                                                        31  

"sensible inference that the term left out must have been meant to be excluded."                                                             This  

                                                         



canon of statutory construction does not support L Street's argument that Section 9.02(a)  

                                                                                                                     

of the Charter forbids the funding of special services by assessment.32  

                                                                                                                           



           31          Chevron U.S.A. Inc., 536 U.S. at 81.  



           32          We  address  one  final  argument  related  to  the  plain  language  of  the  



Anchorage Municipal Charter and the ordinances at issue here.  During oral argument,  

                                                                   

a  discussion  arose  regarding  the  significance  of  the  preambles  to  the  ordinances.  

                                                             

Anchorage  Ordinance  96-77(S-1)  states  in  its  preamble  that  the  Assembly  was  

"authorized in Charter Section 9.02" to amend Title 19 of the Municipal Code to provide  

                                                                                                        

for assessment districts for services.  In subsequent ordinances creating and extending  

the life of the Downtown Improvement District, the preambles contain the statement:  

"WHEREAS,  in  accordance  with  Anchorage  Municipal  Charter  Section  9.02,  the  

Anchorage  Assembly  provided  for  the  creation  of  assessment  districts  for  public  

services . . . ."  See ACO 97-51 (1997); ACO 2000-98 (1998); ACO 2010-58(s) (2010).  

                                                                              

To  the  extent  one  can  argue  that  the  Assembly's  references  to  Section  9.02  in  the  

preambles somehow indicate that the Municipality is no longer operating under its home  

                                                                                                            

rule power but instead cabining its power to be within the confines of Section 9.02,  

                            

which L Street argues is a narrower power which would not allow creating assessment  

                                                                                                                    

districts for public services, we provide two responses.  



                       First,  these  preamble  statements  do  not  preclude  the  Assembly  from  

                                                                                                                         

creating assessment districts for services because "[t]he preamble of a legislative act is  

                                                                                                                  

not part of the law, and it cannot be used to discern the legislature's intent if no doubt  

exists  as  to  a  statute's  meaning."    1A  NORMAN  J.   SINGER   &   J.D.   SHAMBIE  SINGER ,  

SUTHERLAND  STATUTORY  CONSTRUCTION      20:3,  123-25   (7th   ed.  2011);  see  also  

Commercial Fisheries Entry Comm'n v. Apokedak                                         , 680 P.2d 486, 488 n.3 (Alaska 1984)  

(stating that a preamble "can neither restrain nor extend the meaning of an unambiguous        

statute; nor can it be used to create doubt or uncertainty which does not otherwise exist"           

(quoting 2A C. S 

                               ANDS  &   SUTHERLAND ,   STATUTES  AND  STATUTORY  CONSTRUCTION  

  47.04   (4th   ed.  1973))).    The  ordinances  are  abundantly  clear  that  they  create  

assessment  districts  for  services  and  there  is  no  need  to  examine  the  preamble  to  

determine the Assembly's intent.    



                       Second, even if we were to afford the preambles legal weight, the language  

                                                                                                                                

in Section 9.02(a) does not narrow the power of the Municipality to disallow it from  

                                                                                                                              (continued...)  



                                                                       -15-                                                                 6816
  


----------------------- Page 16-----------------------

                   2.	       The legislative history of the Municipal Charter does not forbid  

                             the funding of special services by assessment.  



                                                               

                    "Although the starting point in construing a statute is the language of the  



statute  itself,  reference  to  legislative  history  may  provide  insight  that  is  helpful  in  



                                                    33  

                                                                     

determining the statute's meaning."                     L Street argues that the Anchorage Area Charter  



Commission changed Section 3.01 to add the phrase "or by this Charter" in order "to  



specifically reject the claims that the Municipality 'would have no limitation upon its  



                                                                   34  

powers except those imposed by State law.' "                           L Street contends that this legislative  



                                                               

history is "dispositive" and establishes that Section 3.01 "mandates that [Section] 9.02(a)  



be given legal effect and meaning, and not written out of the Charter."  



                    This argument is unpersuasive.  In June 1975, after reviewing the first draft  



of the Charter, the Charter Production Committee recommended that the Anchorage Area  



                                                      

Charter Commission add the phrase "or by this charter" to Section 3.01, "Powers of the  



                     35  

                                                             

Municipality."           The Charter Production Committee recognized that adding this phrase  



          32(...continued)  



creating assessment districts for public services.  As discussed in Part III.B.1 of this  

opinion,  the  use  of  the  word  "may"  in  Section  9.02,  when  interpreted  under  the  

guidelines  of  the  Commentary  to  the  Charter,  is  permissive  and  cannot  prohibit  the  

Municipality from creating assessment districts for public services.  See  Commission  

                     

Commentary on Anchorage Municipal Charter: An aid to legislative history, to assist in  

                         

the interpretation of the Charter document,  17.11 (Aug. 20, 1975).  



          33  

                               

                    City & Borough of Sitka v. Int'l Bhd. of Elec. Workers, Local Union 1547,  

653 P.2d 332, 336 (Alaska 1982) (citing N. Slope Borough v. Sohio Petroleum Corp. ,  

585 P.2d 534, 540 (Alaska 1978)).  



          34        Charter Prod. Comm., Committee Report #3 to the Anchorage Area Charter  



Commission (June 25, 1975).  



          35  

                                                                                                        

                   Id.  In the report, the section number was "2.01," but the substance of the  

                                                                                                    

section  is  identical  to  what  eventually  became  Section  3.01  of  the  Charter.    See  

                                                                                                           (continued...)  



                                                            -16-	                                                      6816
  


----------------------- Page 17-----------------------

                                                                                                   

was "simply redundant" because the Charter defined the word "law" as including the  

Charter,36 but the Committee made this recommendation to assuage voters who had  



                                                               37 

                                                                   The Charter Commission followed the  

feared "an omnipotent municipal government." 



recommendation of the Committee and added this phrase to the Section even though  



                          

there would be no additional legal effect.  Contrary to L Street's assertions, the phrase  



"or  by  this  Charter"  does  not  provide  additional  limitations  on  the  powers  of  the  



                   

Municipality such that Section 9.02 must be interpreted to require the Municipality to  



finance the District by tax levy only.  As we have explained, the Municipality has the  

broad authority to exercise all legislative powers not prohibited by law or by charter.38  



                                    

The legislative history of Section 3.01 does not indicate that the use of assessments to  



finance services was intended to be prohibited by law or by the Anchorage Municipal  



Charter.  



         35(...continued)  



Anchorage Municipal Charter art. III,  3.01.  



         36       Section 17.3(f) of the Anchorage Municipal Charter provides:  



                                                                              

                  "Law" means this Charter, the ordinances and  resolutions  

                                                      

                  preserved by this Charter, or enacted pursuant to it, and those  

                  portions  of  the  statutes  of  the  State  of  Alaska  and  the  

                  Constitutions of the State of Alaska and of the United States  

                  which  are  valid  limitations  on  the  exercise  of  legislative  

                  power by home rule governments.  



         37       Charter Prod. Comm., Committee Report #3 to the Anchorage Area Charter  



Commission (June 25, 1975).  



         38       Alaska Const. art. X,  11.   



                                                       -17-                                                   6816
  


----------------------- Page 18-----------------------

                                                                                                             

           C.	       State  Law  Does  Not  Govern  The  Expansion  Of  The  Downtown  

                     Improvement District.  



                                                                                 

                     L  Street  argues  that  the  District  is  a  "service  area"  under  state  law;  



                                                                                                                                

therefore, before the Assembly could expand the District, AS 29.35.450 required that a  



                                            

dual majority of the voters residing in the area to be annexed and voters residing in the  



                                                                          39  

                                                                              But AS 29.35.450 applies to "service  

existing District vote in favor of the expansion. 

area[s] that provide[] road, fire protection, or parks and  recreation services."40                                               The  



Municipality  and  the  Partnership  assert  that  the  District  is  "purely  a  creature  of  



                                                                                                                              41  

                                                                                                                                  We  

Anchorage Municipal law" governed by Chapter 19.20 of the Municipal Code. 



agree with the Municipality and the Partnership.  



                                                                                                                      

                     1.	        The Downtown Improvement District is purely a creature of  

                                municipal law.  



                     Anchorage  Municipal  Code  19.10.020  states  that  a  special  assessment  



                                                                                                            

district "is and shall remain a municipal mechanism for delivering special municipal  



          39         AS  29.35.450(c)   provides:   "A  service   area   that   provides   road,  fire  



protection, or parks and recreation services in which voters reside may not be altered . . .                   

unless that proposal is approved, separately, by a majority of the voters who vote on the     

question and who reside in each of the service areas or in the area outside of service areas   

that is affected by the proposal."  



           40	       Id.  



           41  

                                                                                                    

                     In its order, the superior court determined that the District was "impliedly  

                         

authorized" by AS 29.46.010(a).  This statute states, "A municipality may assess against  

the  property  of  a  state  or  federal  governmental  unit  and  private  real  property  to  be  

benefited by an improvement all or a portion of the cost of acquiring, installing, or  

                                                                                 

constructing capital improvements."  We disagree with the superior court's reasoning.  

                                                                                                                     

Alaska Statute 29.46.010(a) does not apply because the District is purely a creature of  

                                                      

Anchorage  municipal  law.                     We  affirm  the  superior  court's  decision  based  on  this  

conclusion.  See Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996, 1001 (Alaska  

2005) ("We may affirm a judgment on any grounds that the record supports, even if not  

                                                         

relied on by the superior court.").        



                                                                 -18-	                                                          6816
  


----------------------- Page 19-----------------------

                                42  

government services."               The Downtown Improvement District is a special assessment     



district governed by the Anchorage Municipal Code, not AS 29.35.450.        



                                                                   

                   As we previously explained, the authority to create the District arose from  



Anchorage  Ordinance  96-77(S-I),  which  the  Assembly  enacted  to  broaden  "special  



assessment districts" under Title 19 of the Municipal Code to include the provision of  



             43  

services.          The  Assembly  subsequently  passed  Anchorage  Ordinance  97-51  which  



                                                      

created Assessment District 1SD97, the Downtown Improvement District, for a period  



                     44	                                                                                                  45 

of three years.          In 2000 the Assembly extended the life of the District for ten years.  

                                                                                                        



Then on September 28, 2010, the Assembly passed AO No. 2010-58(S) to extend the life  



                                                                       46  

of  the  District  again  and  expand  its  boundaries.                      This  expansion,  based  solely  on  



                                       

ordinances  the  Assembly  passed,  is  what  is  at  issue  now.    As  a  unified  home  rule  



municipality, the Municipality has the authority to exercise all legislative powers not  



                                             47  

prohibited  by  law  or  charter,                including  expanding  the  boundaries  of  a  special  



assessment district.  



                   2.	       AS 29.35.450 is inapplicable.  



                             a.	      AS 29.35.450 does not indicate that the District is within  

                                                                                                                

                                      the statute's scope.  

                                                                     



                   Alaska Statute 29.35.450(c) states in part:  



          42       AMC 19.10.020(C) (emphasis added).  



          43       ACO 96-77(S-I) (1996).  



          44       ACO 97-51 (1997).  



          45       ACO 2000-98 (2000).  



          46       ACO 2010-58(S) (2010).  



          47       Alaska Const. art. X,  11.   



                                                           -19-	                                                     6816
  


----------------------- Page 20-----------------------

                    A service area that provides road, fire protection, or parks  

                    and recreation services in which voters reside may not be  

                    altered  or  combined  with  another  service  area  unless  that  

                                

                    proposal is approved, separately, by a majority of the voters  

                    who  vote  on  the  question  and  who  reside  in  each  of  the  

                                          

                    service areas or in the area outside of service areas that is  

                    affected by the proposal.  



                    The  District  does  not  provide  road  or  fire  protection  services,  though  

                                                                                                        



L Street contends that the District does provide "parks and recreation services" because  

                                                   



it has the authority to beautify and decorate the public parks, places, and pedestrian  

                                                       



                     48  

rights-of-way.           L Street also argues that because the Anchorage Parks and Recreation  

                                                                                                  



Service  Area  is  "responsible  for  beautifying,  operating  and  maintaining  Park  and  

Recreation assets"49 and the District has a similar responsibility, the District is providing  



"parks and recreation services" under the statute.  



                    Under the plain language of AS 29.35.450, the statute applies to "service  

                                                                                      



areas" that provide "road, fire protection, or parks and recreation services."  While the  

                                                                                                                   



statute clearly applies to a service area such as the Anchorage Parks and Recreation  

                                                                                                 



Service Area, which has the sole purpose of providing parks and recreation services, it  

                                                               



does  not  expressly  apply  to  all  service  areas  that  provide  any  parks  and  recreation  

                               



services, however minimal.  The statute also does not apply to a business improvement  

                                                                           



district that provides a wide variety of services, only one category of which happens to  

                                                                                                    



include "[m]aintenance, snow removal, dust suppression, cleaning, beautification, and  

                                                                                                      



decoration of public parks, places and pedestrian rights-of-way."  And the legislative  



          48        ACO 2010-58(S)  5 (2010).  



          49        See  AMC  27.30.080  (1996)  (establishing  the  Anchorage  Parks  and  



Recreation Service Area).   



                                                             -20-                                                            6816  


----------------------- Page 21-----------------------

history of AS 29.35.450 clarifies that the legislature intended to address only certain  



types of service areas.  



                                                                                   

                            b.	       The legislative history of AS 29.35.450 does not suggest  

                                      that the District is included in the statute's scope.  



                   L Street argues that the legislative history "establishes that the primary  



                                                                                                             

purpose of AS 29.35.450(c) was to take the power to expand service areas from local  



                                                                                                  

governments such as the Municipality, and vest final authority over such expansion in  



the voters to be added to the service area."  The Partnership and the Municipality respond  



                                                                                                              

that the "legislative history is clear in showing that the legislation was meant to address  



only  certain  types  of  service  areas  and  nothing  more."    The  superior  court  agreed,  



concluding:  



                   The   court   finds   nothing   in   the   legislative   history   of  

                           

                   [AS 29.35.450(c)] to suggest anything beyond the obvious:  

                   that the legislature wished to preclude the expansion of three  

                   well-defined  types  of  traditional  service  areas  over  voter  

                   objection.    Nothing  suggests  such  fervency  about  dual- 

                   majority elections that the legislature wished to impose them  

                                                    

                   in instances where a non-road, non-fire-protection, non-park  

                                                                

                   service area or special assessment district might provide de  

                                                                                

                   minimis road, fire, or beautification functions.  



We agree with the superior court.  



                   In Area G Home & Landowners Organization, Inc. (HALO) v. Anchorage ,  

                                   



we addressed the Anchorage Assembly's expansion of the Anchorage Police Service  



Area  to  include  the  growing  Hillside  neighborhood  without  a  separate  vote  by  the  

annexed Hillside residents.50  

                                                                                                      

                                          The appellants in that case argued, similar to L Street here,  



          50       927 P.2d 728, 730-31 (Alaska 1996).   



                                                           -21-                                                        6816  


----------------------- Page 22-----------------------

that the term "area affected" in Section 9.01 of the Anchorage Municipal Charter51 meant  



                                                                                                   52  

the geographical area to be added to or removed from a service area.                                    We affirmed the  

                                                                                             

                                 



authority of the Anchorage Assembly to expand the service area to include the Hillside  

                                                                                         

without a separate vote by Hillside residents.53  

                                                                      



                    Following this decision, in 2001 Hillside's state representative Con Bunde  

                                                                                           



sponsored a bill to amend AS 29.35.450 to provide "for voter approval of the formation,  

alteration, or abolishment of certain service areas."54  Throughout the committee hearings  



on this bill, Representative Bunde made it clear that this bill would mainly address road  

                  

services areas and one fire service area.55  Representative Bunde stated, "This legislation  

                                                                                              



does not address police service.   The police service issue was settled by the Alaska  

                                                                                                



                         56  

Supreme Court."              Much of the discussion and concern in the committees was over the  

                                                                                            



          51        Anchorage Municipal Charter  9.01(a) provides:  



                    A  service a   rea may be created, altered, or abolished only with  

                    the approval of a majority of those voting on the question  

                    within  the  area  affected,  or,  if  no  qualified  voter  resides  

                    within the area, with the written consent of the owners of all  

                    real   property   within   the   area   affected.      However,   the  

                           

                    Assembly,  by  ordinance  may  consolidate  service  areas  in  

                    which services are provided by the municipality at the same  

                                                                                                

                    level in each of the areas to be consolidated.  



          52       HALO , 927 P.2d at 734.  



          53       Id . at 739.  



          54        Rep.  Con B      unde,  Sponsor Statement for SCSCSSSHB 13, 22nd Leg., 1st  



Sess.  



          55        Minutes, H. Community & Reg'l Affairs Comm. Hearing on SSHB. 13,  

                                                                       

22nd Leg., 1st Sess. (Jan. 25, 2001) (comments of Representative Bunde).  



          56       Id .; see also Minutes, H. Judiciary Comm. Hearing on SSHB 13, 22nd Leg.,  



                                                                                                           (continued...)  



                                                             -22-                                                       6816
  


----------------------- Page 23-----------------------

                                  

constitutionality of the bill.  In all five of the committee meetings in the House and  



Senate, Representative Bunde tailored his comments to focus on "road service areas,"  

and the discussions stemmed from that understanding.57  Ultimately the legislature listed  



"road, fire protection, or parks and recreation services" in AS 29.35.450(c), although  

earlier versions of the bill only listed "road or fire protection services."58  



                                                          

                      As the superior court stated, the legislative history of AS 29.35.450 shows  



that the legislature was focused on specific types of service areas.  It does not suggest  



                                                                     

that the legislature either contemplated or intended to impose the voting requirements of  



AS 29.35.450(c) on a business improvement district that does not primarily provide road,  



                                                                                                                           

fire, or  park  and  recreation  services, but may  provide  some  services  in  those  areas.  



                                                                                                                                   

Neither the plain language nor the legislative history of AS 29.35.450 indicates that the  



           56(...continued)  



 1st Sess. (Feb. 5, 2001) (comments of Representative Bunde).   



           57         Minutes, H. Community & Reg'l Affairs Comm. Hearing on SSHB 13,     



22nd Leg., 1st Sess. (Jan. 25, 2001) (comments of Representative Bunde); Minutes, H.       

Community  &  Reg'l  Affairs  Comm.  Hearing  on  H.B.  13,  22nd  Leg.,  1st  Sess.  

(Jan. 30, 2001) (comments of Representative Bunde); Minutes, H. Judiciary Comm.  

Hearing on SSHB 13, 22nd Leg., 1st Sess. (Feb. 5, 2001) (comments of Representative  

                                                        

Bunde); Minutes, H. Judiciary Standing Comm.  Hearing on H.B. 13, 22nd Leg., 1st  

                                                                     

Sess. (Feb. 14, 2001) (comments of Representative Bunde); Minutes, Senate Judiciary  

                                                                                                    

Comm.  Hearing  on  H.B.  13,  22nd  Leg.,  1st  Sess.  (Apr.  2,  2001)  (comments  of  

Representative Bunde).    



           58         See H.B. 13, 22nd Leg., 1st Sess. (2001).   



                                                                    -23-                                                              6816
  


----------------------- Page 24-----------------------

                                                                 59  

                                                                      

District is a service area subject to its terms.                     Accordingly, we hold that the District is  



not a service area subject to the voting requirements of AS 29.35.450.  



IV.       CONCLUSION  



                    We AFFIRM the superior court's grant of summary judgment.  



          59        L Street also raises a due process argument.  Under AMC 19.20.010(B)  



(1996), the District may be "extended only with the approval of the property owners who  

                                                                                          

would bear more than 50 percent of the estimated cost of the improvement or service."  

                                       

L Street argues that "[s]o long as a sufficient number of property owners already in the  

                                                                                                              

District vote to expand the District, the District can be expanded regardless and in spite  

                                         

of the wishes of those in the area to be annexed."  We do not reach this constitutional  

                                       

argument because it is inapplicable here.  While the Assembly appears to have only  

examined the total number of petitions in favor of expanding and continuing the District  

                                                                                                                  

rather than also looking at the subset of petitions from only those property owners within  

                                     

the  proposed  expansion,  thirty  properties  in  the  expansion  area  with  a  total  annual  

assessment of $89,057, or 56.8%, were in favor of the expansion.  Thus, a majority of  

                                                                              

business  owners  in  the  area  affected  by  the  proposed  expansion  voted  in  favor  of  

                                                                                                       

expanding the District to include their properties.  L Street's argument is inapposite.  



                                                             -24-                                                            6816  

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