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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tweedy v. Matanuska-Susitna Borough Board of Adjustment and Appeals (6/20/2014) sp-6917

Tweedy v. Matanuska-Susitna Borough Board of Adjustment and Appeals (6/20/2014) sp-6917

        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  



CLIFTON O. TWEEDY,                                 )  

                                                   )       Supreme Court No. S-15034  

                 Appellant,                        )  

                                                   )       Superior Court No. 3AN-12-04609 CI  

        v.                                         )  

                                                   )       O P I N I O N  

MATANUSKA-SUSITNA                                  )  

BOROUGH BOARD OF                                   )       No. 6917 - June 20, 2014  

ADJUSTMENT AND APPEALS,                            )  

                                                   )  

                 Appellee.                         )  

_______________________________ )  



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

                                                           

                 Judicial District, Anchorage, Kevin M. Saxby, Judge.   



                 Appearances:  Ronald L. Baird, Office of Ronald L. Baird,  

                 Anchorage,  for  Appellant.    John  Aschenbrenner,  Deputy  

                 Borough  Attorney,  and  Nicholas  Spiropoulos,  Borough  

                 Attorney, Palmer, for Appellee.   



                 Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                            

                 Bolger, Justices.  



                 STOWERS, Justice.  



I.       INTRODUCTION  



                 Clifton  Tweedy  began  leasing  property  from  the  Matanuska-Susitna  



Borough on Big Lake in May 1988.  The property  included  a house that was built in  

                                                                                  



1968 and located less than 18 feet from the lakeshore.  When Tweedy assumed the lease,  



the  existing  structure  was  exempt  from  the  Borough's  75-foot  shoreline  setback  


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

                                                                                

ordinance because it was constructed before any setback requirement existed.  Shortly  



                                                                                       

after he took possession of the property, Tweedy constructed a stairwell addition on the  



                                                                               

exterior  of  the  house.    In  2010  Tweedy  applied  with  the  Borough  to  purchase  the  



property.  Because structures on the property were located less than 75 feet from the  



shoreline,  the  sale  required  an  exemption  or  variance  from  the  Borough's  setback  



requirement.  The Borough Planning Director determined that Tweedy's addition was  



                                                                                      

unlawful and that the application could not be processed until Tweedy removed it.  The  



Matanuska-Susitna  Borough  Board  of  Adjustment  Appeals  affirmed  the  Planning  



                                                                                          

Director's  decision.          Tweedy  appealed  to  the  superior  court,  which  also  affirmed.  



Because the 75-foot setback applied to Tweedy's property when  he  constructed the  



                                       

addition,  the  addition  was  unlawful  when  it  was  built  and  he  is  not  entitled  to  an  



exemption or variance.  We affirm.  



II.      FACTS AND PROCEEDINGS  



         A.       Facts  



                   1.       History of the shoreline-setback requirement  



                  In 1973 the Matanuska-Susitna Borough Assembly (Assembly) adopted a  



shoreline-setback  ordinance  that  prohibited  structures  "closer  than  75  feet  from  the  

normal  high  water  mark  of  a  water  course  or  body  of  water  in  a  shoreland."1                          On  



June 18,  1981, the Assembly reworded the setback requirement and renumbered it as  



                          2  

MSBC  16.25.480.     The  Assembly  gave  Title  16  of  the  Borough  Code  the  heading  



         1        Matanuska-Susitna  Borough,  Alaska,   Ordinance  73-006  (July  3,  1973)  



(codified as former MSBC 08.45.112(b) (1973)).  



         2        Matanuska-Susitna Borough, Alaska, Ordinance 81-068 (June 18, 1981).  



                                                          -2-                                                      6917  


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

                                          3  

"Subdivision Regulations."   The new setback requirement provided that "no structure  

                                                            



or footing shall be located closer than 75 feet from the high water mark of a watercourse  

or body of water."4  



                    The  shoreline-setback  ordinance  did  not  initially  contain  a  provision  



                                                 

expressly exempting structures built before a setback requirement existed, but in October  



          

1986       the   Assembly   adopted   an   exemption   for   structures   completed   prior   to  



                                                                                                      

January 1, 1986, if the owner had no knowledge of any violation before substantially  



                                      5  

                                            In  November  1986  the  Assembly  reduced  the  setback  to  

completing  construction.                                                                                      



           6                                                                                         7  

45 feet,   but a 1987 ballot initiative returned the setback to 75 feet.   In March 1987 the  

                     



Assembly extended the exemption from the setback requirement to apply to structures  

                                                                                                     

completed before January 1, 1987.8  



                    In September 1988 the Assembly repealed and replaced Title 16 and added  



                                                                                                       9  

a chapter to Title 17 entitled "Setbacks and Screening Easements."   The effect of this  

                



enactment was to move the 75-foot setback requirement from Title 16 to Title 17 as  



          3         Id.
  



          4         Id. (codified as former MSBC 16.25.480(A) (1981)).
  



          5         Matanuska-Susitna Borough, Alaska, Ordinance 86-085                                      (Oct. 7,      1986)
  



(codified as former MSBC 16.25.480(C) (1981)).  



          6         Matanuska-Susitna Borough, Alaska, Ordinance 86-101 (Nov. 4, 1986).  



          7         Matanuska-Susitna Borough, Alaska, Setback & Public Easement Initiative  



Areawide (May 5, 1987).  



          8  

                                                                               

                    Matanuska-Susitna Borough, Alaska, Ordinance 87-024 (Mar. 17, 1987).  



          9         Matanuska-Susitna Borough, Alaska, Ordinance 88-190 (Sept. 6, 1988).  



                                                                -3-                                                         6917
  


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

                            10  

MSBC  17.55.020.                The relevant language of MSBC 17.55.020(A) is identical to that  



                                                 11  

of former MSBC 16.25.480(A).                         MSBC 17.55.020(C) maintains the exemption for  



construction completed prior to January 1, 1987.  



                    2.        Tweedy's property  



                                                                     

                    The home on Lot 6B, Block 1, South Big Lake Addition was originally  



                       

built in 1968.  The house on the lot sits just 17.6 feet from the shore of Big Lake.  On  



March  25,  1988,  North  American  Savings  and  Loan  Association,  which  preceded  



                   

Tweedy  as  lessee,  applied  for  an  exemption  from  the  setback  requirements  then  



                                                                                                         

contained in MSBC 16.25.480.  The application included an as-built drawing showing  



                                                 

the dimensions of the existing residence.  The Matanuska-Susitna Borough Chief of  



                                                                 

Code Compliance approved an exemption from the shoreline setback for the structure,  



                                                                                              

concluding  that  "it  is  my  determination  that  the  waterbody  setback  requirements  of  



                                                                                                       

[MSBC]  16.25.480  do  not  apply  to  the  structure(s)  set  out  in  this  application."  



                                                                                                           

Presumably the Chief of Code Compliance approved the exemption on the grounds that  



                                                                                    

the  house  was  constructed  before  January  1,  1987,  and  North  American  had  no  



                                                                                    

knowledge   of   violating   any   setback   requirements   prior   to   any   construction   it  

completed.12  



                    Tweedy assumed the lease of the property on May 11, 1988.  Sometime  



shortly  after  taking  possession,  Tweedy  constructed  an  exterior  stairwell  addition  



measuring six by eight by ten feet on the north side of the house.  In 2010 Tweedy  

                       



          10        Id.  



          11        MSBC 17.55.020(A) provides that "no structure or footing shall be located   



closer  than   seventy-five  feet  from  the  highwater  mark  of  a  watercourse  or  body  of  

water."    Former  MSBC  16.25.480(A)  differs  only  by  rendering  "seventy-five"  in  

numerals: "75."  



          12        See former MSBC 16.25.480(C).  



                                                               -4-                                                         6917
  


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

applied to purchase the property and its improvements from the Borough through a fee- 



simple purchase option available to him under his lease.  Because the house was located  



                                                       

less than 75 feet from the lakeshore, the sale required a setback exemption or variance.  



                                                                                                         

As part of his application to purchase the property, Tweedy submitted another as-built  



drawing showing the dimensions of the structures on the property as of July 20, 2010.  



The 2010 as-built drawing showed several structural additions, including the stairwell  



                                                                                       

addition.  The Borough sent a letter to Tweedy in October 2010 informing him that the  



additions on his property were not compliant with shoreline-setback requirements.  



                                                                                                        

                    In January 2011 Tweedy went to the Borough planning office and spoke  



                                           

with Susan Lee, the planner who reviewed his as-built survey, and Robert Guertin, the  



                                          

Chief of Code Compliance. They discussed the additions to the property and compliance  



                      

with setbacks, and Guertin and Lee requested that Tweedy submit written documentation  



                             

of additions to the property.  Tweedy agreed to provide documentation and to move or  



                         

remove  certain  additions,  including  an  outhouse  and  fuel  tank,  to  bring  them  into  



compliance.  



                    Tweedy submitted documentation showing that he constructed the stairwell  



                                                                                                       

addition on the north side of the house sometime after the first survey was submitted in  



            

1988.       Lee  informed  Tweedy  that  the  stairwell  addition  was  not  compliant  with  



MSBC 17.80.060(A)(1), which provides that "a nonconforming structure may not be  



enlarged  or  altered  in  any  way  unless  the  alteration  or  enlargement  is  otherwise  



specifically  allowed  by  code,"  and  MSBC  17.80.060(A)(2),  which  provides  that  "a  



                                                                                                                           

nonconforming structure may not be enlarged or altered vertically or horizontally, in a  



way which would increase the height, width, depth, area, or volume of the structure  



                                                 

except as specifically allowed by current code for similar new structures in that location."  



She further informed him that the stairwell was not eligible for a variance because it was  



                                                             -5-                                                        6917
  


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

                                                             

not constructed before January 1, 1987.  The Borough Planning Director issued a final  



administrative determination making the same findings.  



          B.        Proceedings  



                                                                                                       

                    Tweedy appealed the Planning Director's determination to the Matanuska- 



                                          

Susitna Borough Board of Adjustment Appeals (Board), and in December 2011 the  



                                                                                                  

Board        affirmed        the     Planning         Director's         decision.        The      Board        relied      on  



                                                                             

MSBC  17.80.060(A)(2)  and  the  "long  standing  interpretation  of  code  that  legal  



nonconforming  structures  may  be  maintained,  but  not  enlarged  in  ways  that  are  



prohibited  for  new  structures  in  the  same  location."    The  Board  concluded  that  the  



                                                                                                                      

structure was "not eligible for any type of nonconforming determination due to the date  



it was constructed."  



                    Tweedy appealed the Board's decision to the superior court.  He argued  



          

that:  (1) the stairwell was a legal, nonconforming use under MSBC 17.80; (2) former  



                                                    

MSBC 16.25.480 did not apply to his property because the property was platted prior to  



the  effective  date  of  that  provision;  (3)  MSBC  17.55.020  could  not  be  applied  



                                                                                  

retroactively to improvements constructed prior to the date that ordinance was passed;  



and (4) if MSBC 17.55.020 applies, it violates due process and is an unconstitutional  



taking of property.  



                    The  superior  court  concluded  that  former  MSBC  16.25.480  applied  to  



                                                                                                    

Tweedy's  property.              The  court  explained  that  the  ordinance  on  its  face  applied  to  



property in all subdivisions, not only to construction in new subdivisions.  The court  



                                                                                                               

further  concluded  that  because  the  75-foot  setback  requirement  was  in  effect  when  



                                                                                                   

Tweedy took possession of the property and built the stairwell, the addition violated the  



                                                                                                                      

setback provision and the provision against expanding noncomplying structures and did  



                                                                        

not qualify for an exemption. The superior court also concluded that because the setback  



                    

requirement was already in effect when Tweedy built the stairwell, there was no issue  



                                                              -6-                                                        6917
  


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

                                                

of retroactive application of an ordinance and no uncompensated taking.  Finally, the  



                                                                                             

court concluded that the shoreline setback ordinance does not violate substantive due  



process because it is reasonably related to a legitimate government purpose.  



III.      STANDARDS OF REVIEW  



                                                                                                                

                    "When  the  superior  court  acts  as  an  intermediate  appellate  court,  we  



                                                                                                              13  

                                                                                                                  Because  

independently review the merits of the underlying administrative decision." 



                                            

of a zoning board's expertise in administering zoning ordinances, "[w]e ordinarily give  



great weight to a zoning board's interpretation of its own zoning code and accept its  



                                                                                              14  

                                                                                                  But when, as is the  

interpretation when the board supplies a reasonable basis for it." 



                                                                                                  

case here, we are presented with a question of law that does not involve the Board's  

expertise, we exercise our independent judgment,15 "adopt[ing] the rule of law that is  



most persuasive in light of precedent, reason, and policy."16  



          13       Heller v. State, Dep't of Revenue , 314 P.3d 69, 72 (Alaska 2013).  



          14       Pruitt v. City of Seward , 152 P.3d 1130, 1139 (Alaska 2007) (quoting                                   S.  



Anchorage Concerned Coal., Inc. v. Coffey , 862 P.2d 168, 173 n.12 (Alaska 1993))  

(internal quotation marks omitted).  This standard applies to both planning commission  

                                                      

and board of adjustment decisions.  Balough v. Fairbanks N. Star Bor ., 995 P.2d 245,  

                     

254 (Alaska 2000) (noting that both Planning Commission and Board of Adjustment  

decisions are entitled to a "presumption of validity").  



          15  

                                                                                    

                   Pruitt , 152 P.3d at 1139 (citing Griswold v. City of Homer, 55 P.3d 64, 68  

(Alaska 2002)).  



          16        Gillis v. Aleutians E. Bor., 258 P.3d 118, 120 (Alaska 2011).  



                                                             -7-                                                       6917
  


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

                                                                                                          17  

                    We  interpret  statutes,  including  municipal  ordinances,                               "according    to  

                                          



reason,  practicality,  and  common  sense,  considering  the  meaning  of  the  statute's  



                                                                            18  

language, its legislative history, and its purpose."                            "[T]he plainer the language of the  



                                                                                                                  

statute, the more convincing any contrary legislative history must be . . . to overcome  

[its] plain meaning."19  



IV.       DISCUSSION  



                    Tweedy's  main  argument  is  that  the  shoreline-setback  requirement  in  



former MSBC 16.25.480 was a subdivision regulation that did not apply to his property  

                                                                                                



because his land was subdivided before the ordinance was enacted.  He further argues  



that  because  no  shoreline  setback  applied  to  his  property  when  he  constructed  the  



stairwell, the current shoreline-setback requirement of MSBC 17.55.020  was improperly  



applied  retroactively  to  his  stairwell  addition,  and  that  this  retroactive  application  



                                                                                                       

violated substantive due process or was an unconstitutional taking.  Each of these latter  



arguments is based on the premise of Tweedy's main argument: that no shoreline-setback  



                                                                                                    

requirement prohibited the stairwell at the time it was constructed.  Because we conclude  



that the shoreline-setback requirement in former MSBC 16.25.480 did apply to Tweedy's  



property  when  he  constructed  his  stairwell,  the  stairwell  was  unlawful  when  it  was  



                                                                      

constructed.  Thus, the current code was not applied retroactively, there was no taking  



          17        See  City  of  Skagway  v.  Robertson,  143  P.3d  965,  970  (Alaska  2006)  



(applying rule to interpretation of a municipal ordinance).  



          18        McDonnell v. State Farm Mut. Auto. Ins. Co.                          , 299 P.3d 715, 721 (Alaska     



2013) (quoting Nelson v. Municipality of Anchorage , 267 P.3d 636, 639 (Alaska 2011))  

(internal quotation marks omitted).  



          19         Oels v. Anchorage Police Dep't Emps. Ass'n, 279 P.3d 589, 595-96 (Alaska  



2012)  (quoting  Peninsula  Mktg.  Ass'n  v.  State ,  817  P.2d  917,  922  (Alaska  1991))  

                                                                                     

(omission in original).  



                                                                -8-                                                         6917
  


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

or   violation   of   due   process,   and   the   addition   was   not   entitled   to   any   exemption  or  



variance.  



         A.       Former MSBC 16.25.480 Applied To Tweedy's Property When He  

                  Constructed The Stairwell Addition.  



                  Tweedy argues that former MSBC 16.25.480, which required a 75-foot  



setback from the high water mark  of  a  water course or body of water, did not apply to  



his property because the ordinance was a subdivision or platting regulation, not a zoning  



                                                                                     

ordinance.  Tweedy asserts that because M SBC 16.25.480 was a subdivision regulation,  



it only governed the process of subdividing land and could not apply to construction on  



property within a preexisting subdivision, especially where the subdivision was platted  



                                               20  

                                                   The Borough  responds that the setback ordinance  

prior to the regulation's enactment.  



was a zoning ordinance of general   application regardless of where the ordinance was  



located in the code.  Because former MSBC 16.25.480 applied to all construction on  



                                             

subdivided  property  regardless  of  when  the  subdivision  was  created,  it  applied  to  



Tweedy's  property,  and  Tweedy's  stairwell  addition  was  unlawful  when  it  was  



constructed.  



                  Former MSBC 16.25.480(A) provided:  



                                                                      

                  Except as provided in B and C of this section no structure or  

                  footing  shall  be  located  closer  than  75  feet  from  the  high  

                  water mark of a watercourse or body of water.  



                                                                               

The language of this ordinance, considered in the context of former MSBC Title 16 as  



                                          

a  whole,  does  not  create  an  exception  from  the  shoreline-setback  requirement  for  



construction  in  preexisting  subdivisions.    Former  MSBC  16.05.020  provided  that  



         20       Tweedy's lot was created by a subdivision of state land in 1966; former  



MSBC 16.25.480 was enacted in 1981.  



                                                        -9-                                                     6917  


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

                                                                                       21  

Title 16 governed "all subdivisions within the Borough."    Tweedy cites the definition  



of "subdivision" in former MSBC 16.05.040(B)(22):  "the division of a tract or parcel  



                                                                                    22  

of land into two or more lots, sites or other divisions."                               He argues that this definition  



                                                                                                             

means  that  the  regulations  in  Title  16  governed  only  prospective  applications  to  



subdivide land.  But the word "subdivision" also commonly means "[a]n area of real  



                                                             23  

                                                                                                                     

estate subdivided into individual lots."                         It is clear that, though only the process of  



                                                             

subdivision is defined, former Title 16 uses both meanings of the word.  For example,  



former   MSBC   16.25.020(B)   refers   to   "[c]onstruction   of   improvements   within  



                                                                                                                        24  

                                                                                                                            These  

subdivisions," and former MSBC 16.25.100 references access to subdivisions. 



uses clearly reference subdivisions as geographic places.  Similarly, the language of  



                                                                     

former MSBC 16.25.480 appears to regulate building within a physical subdivision, not  



                                                             25  

                                                                                               

the initial process of subdividing land.                         Because Title 16  included ordinances that  



governed  the  use  of  land  within  subdivisions,  it  makes  little  sense  to  conclude  that  



                                                                                                      

Title 16 governed only the process of subdividing land.  The more logical interpretation  



                                                   

is that ordinances within former Title 16 that regulated the process of subdividing land  



                                                                                                           

governed prospective applications to subdivide land, and ordinances that regulated the  



          21         Matanuska-Susitna Borough, Alaska, Ordinance 81-068 (June 18, 1981).   



          22        Id.  



          23         THE AMERICAN  HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1735  



(5th  ed.  2011);  see  also  BLACK 'S  LAW  DICTIONARY   1560  (9th  ed.   2009)  (defining  

"subdivision" as both "[t]he division of a thing into smaller parts"                                and "[a] parcel of land  

in a larger development").  



          24  

                                                                   

                     Matanuska-Susitna Borough, Alaska, Ordinance 81-068 (June 18, 1981).  



          25        Id.  



                                                               -10-                                                          6917
  


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

                                     

use of subdivided land applied to all land within subdivisions, regardless of when the  



subdivision was created.  



                    Furthermore,  subdivision  regulations  and  zoning  ordinances  are  not  



                                                26  

mutually  exclusive  categories,                    and  neither  the  state  legislature  nor  the  Borough  



                                                      

Assembly has defined any discrete boundary between municipal zoning and subdivision  

or platting authority.27  The application of a particular ordinance depends on the language  



and purpose of that ordinance, not what nominal category it is placed into.  In this case,  

                                                                                            



whether one calls it a zoning ordinance or a subdivision regulation, it is clear that former  

                                             



MSBC 16.25.480 governed how close to a body of water a property owner could build  

                                                    



a structure on subdivided land.  



                    Moreover, the argument that the setback is ineffective because it is in a  



                                                                                                  

code section titled "Subdivision Regulations" is unavailing.   The title of a statutory  



provision  or  code  section  can  be  an  interpretive  tool,  but  it  is  only  relevant  where  



                                                     28  

legislative meaning is left in doubt.                     As discussed above, the plain language of former  



MSBC 16.25.480 leaves no doubt that it is generally applicable to all new construction.  

                                                               



Further, requiring municipal ordinances to strictly conform with our interpretation of the  



          26        See  5   EDWARD   H.   ZIEGLER ,   JR .,   RATHKOPF 'S  THE  LAW OF  ZONING AND  



                  

PLANNING  89:4 (4th ed. 2012) (discussing the differences in the principal purposes of       

"zoning  restrictions"  and  "subdivision  regulations,"  but  observing  that  there  is  

considerable overlap between the categories).  



          27        See AS 29.40.010-200; MSBC 17.52-56.  



          28        Boyd v. State , 210 P.3d 1229, 1232 (Alaska 2009) ("[U]nder the rules of  



statutory  construction,  where  the  meaning  of  a  statute  or  regulation  is  clear  and  

unambiguous, a court will not consider the heading of the statute or regulation.").  



                                                               -11-                                                         6917
  


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

                                                                                 

definition of a code section or ordinance title would be inconsistent with the principle  

that municipal regulatory power should be liberally construed.29  



                   A shoreline-setback ordinance also fits within the stated purposes of former  



MSBC Chapter 16.  The purposes listed for former Chapter 16 were:  



                   1.	       To implement the Borough's areawide platting power  

                             under AS 29.33.15.  



                                                                                           

                   2.	       To promote and protect the public health, safety and  

                             welfare;  to  provide  for  the  proper  arrangement  of  

                             roads and streets in relation to existing or proposed  

                             roads and streets; to provide for adequate, useful and  

                             convenient open spaces; to provide for the efficient  

                                                                  

                             movement of vehicular, pedestrian and other modes of  

                                                                

                             transportation; to assure adequate and properly placed  

                                                    

                             utilities; to provide access for firefighting apparatus; to  

                             provide   recreation,   light   and             air,   and   to   avoid  

                                                                            

                             population  congestion;  to  facilitate  the  orderly  and  

                                                                                [30] 

                             efficient layout and use of the land.  



                                              

Tweedy suggests that the first enumerated purpose demonstrates that the ordinances  



                                                  

within former MSBC Chapter 16 were limited to directly implementing the Borough's  



platting  authority.    But  a  shoreline-setback  ordinance  is  clearly  consistent  with  the  



            

second  enumerated  purpose.    The  setback  provision  can  easily  be  characterized  as  



                                                                                                                        31  

serving the purposes of providing open space, recreation, and avoiding congestion.                                           



          29	      Alaska Const. art. X,  1; AS 29.35.400.  



          30       Matanuska-Susitna Borough, Alaska, Ordinance 81-068 (June 18, 1981)  



(codified as former MSBC 16.05.015(A) (1981)).  



          31       We have not directly addressed the purpose of shoreline-setback provisions,  



but  in  a  case  concerning  a  boundary-line-setback  covenant,  we  held  that  setback  

requirements generally serve a number of purposes.  Kohl v. Legoullon , 936 P.2d 514,  

                                               

520 (Alaska 1997).  There, we quoted with approval a Wisconsin court's description of  

                                                                                                         (continued...)  



                                                           -12-	                                                     6917
  


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

                                                                                               

                    Tweedy also argues that the superior court and the Board erred by relying  



                                       

on the 1987 initiative that restored the shoreline setback to 75 feet.  We recently held that  



                  

because of the statutorily required role of a planning commission, "zoning by initiative  



                32  

                                                                                         

is invalid."        We have not considered whether to apply this holding retroactively.  But  



                

we do not need to answer that question here because, even if the ballot initiative restoring  



                       

the setback to 75 feet was unlawful, the setback would have been 45 feet under the  



                                                                                                     33  

                                                                                                         Any expansion  

November 1986 ordinance that the initiative was intended to change. 



                                                                                                       

of the house on Tweedy's property, which is only 17.6 feet from the lakeshore, would  



be unlawful under a either a 75-foot or a 45-foot setback.  



          31(...continued)  



the broad purpose of setback provisions:  



                    [Z]oning setback and yard requirements are considered by  

                    courts to promote a variety of public purposes.  They are held  

                                                 

                    to relate to provision for light and air, fire protection, traffic  

                                                                       

                    safety,  prevention  of  overcrowding,  rest  and  recreation,  

                    solving  drainage  problems,  protecting  the  appearance  and  

                    character of a neighborhood, conserving property values, and  

                                   

                    may, in particular cases, promote a variety of aesthetic and  

                    psychological values as well as ecological and environmental  

                    interests.  



Id. at 520 n.10 (alteration in original) (quoting Town of Portland v. Wis. Elec. Power Co.,  

                                                                                                        

543 N.W.2d 559, 560-61 (Wis. App. 1995)).   



          32        Carmony  v.  McKechnie,  217  P.3d  818,  821  (Alaska  2009)  (quoting  



                                                                                 

Griswold v. City of Homer, 186 P.3d 558, 563 (Alaska 2008)) (internal quotation marks  

omitted).  



          33        Matanuska-Susitna Borough, Alaska, Ordinance 86-101 (Nov. 4, 1986).  



                                                             -13-                                                       6917
  


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

         B.	       The Board Did Not Apply MSBC 17.55.020 Retroactively.  



                   Tweedy argues that the Board erred by giving MSBC 17.55.020 retroactive  



application to January 1, 1987, when it was not passed until September 6, 1988.  This  



                                 

argument is based  on  the premise that there was no setback provision applicable to  



Tweedy's property before the Assembly passed MSBC 17.55.020.  But as discussed  



                                                                                             

above, former MSBC 16.25.480 did apply to Tweedy's property.  The Assembly simply  



                                                                                 

moved         the     75-foot       setback        requirement          from      MSBC          16.25.480(A)           to  

MSBC 17.55.020(A), using identical language.34  



          C.	      The  Setback  Requirement  Is  Not  Unconstitutional  As  Applied  To  

                   Tweedy's Property.  



                                                                                             

                   Tweedy  argues  that  MSBC  17.55.020  is  facially  unconstitutional  and  



                                                                                                             

unconstitutional  as  it  is  applied  to  his  property  because  it  does  not  allow  for  legal,  



nonconforming structures.  He argues that the ordinance violates substantive due process  



                                                                                               

and is an unconstitutional taking of property without compensation.  Because the setback  



         34        See  Matanuska-Susitna  Borough,  Alaska,  Ordinance  81-068   (June  18,  



1981);  Matanuska-Susitna Borough, Alaska, Ordinance 88-190 (Sept. 6, 1988).  



                   Tweedy's         assertion      that    MSBC        17.55.020's         setback      provision       is  

inapplicable because the setback requirment was located in former MSBC 16.25.480  

when he constructed the stairwell is without merit.  MSBC 17.55.020(C) provides that  

                                                 

"[t]his section does not apply to structures where construction was completed prior to  

                                                                                                 

January  1,  1987  if  the  present  owner  or  owners  of  the  property  had  no  personal  

knowledge  of  any  violation  of  the  requirements  of  this  section  prior  to  substantial  

                             

completion  of  the  structures."  "[T]he  requirements  of  this  section"  references  the  

requirements included in the section even when they were previously located elsewhere  

in the code.  Because there was no MSBC 17.55.020 prior to September 6, 1988, an  

                                                                               

alternate interpretation would render subsection C entirely superfluous.  Further, whether  

the  exemption  applies  to  the  requirements  included  in  former  MSBC  16.25.480  is  

irrelevant because Tweedy constructed the stairwell after January 1, 1987, but while  

                                                                                                             

former MSBC 16.25.480 was still in effect; the construction was unlawful in either case.  

                                                              



                                                          -14-	                                                    6917
  


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

provision was in place when Tweedy took possession of the property on May 11, 1988,  



                    

and because the code does allow for nonconforming structures, the setback provision  



                                                                    

could not deprive him of any right or property interest, and the ordinance as applied to  



Tweedy does not violate any constitutional provision.  



                    1.       Due Process  



                   Tweedy does not allege a violation of procedural due process; rather, he  



appears   to   argue   that   by   not   including   a   provision   for   nonconforming   uses,  



MSBC 17.55.020 (and presumably former MSBC 16.25.480 if it applied to him) violates  



substantive due process.  



                                                                            

                   "A legislative body's zoning decision violates substantive due process if  

                                                                                                     35   We have held  

                                                                                                         

it has no reasonable relationship to a legitimate government purpose." 



that a person who has a legal, nonconforming land use has a vested property right that  

                            



                                                               36  

may  not  be  deprived  without  due  process.                       A  nonconforming  use  is  "a  use  which  

                                 



lawfully existed prior to the enactment of a zoning ordinance, and which is maintained  

                                                                                          



after the effective date of the ordinance, although it does not comply with the zoning  

restrictions applicable to the area in which it is situated."37  



                   The  setback  requirement  and  the  lack  of  a  provision  to  allow  for  the  



expansion of existing nonconforming structures are both reasonably related to legitimate  

                                                                           



          35        Griswold, 925 P.2d at 1019 (holding that zoning amendment to allow motor  



vehicle sales in a small area of the City of Homer was related to a legitimate government  

                                             

purpose and did not violate substantive due process).  



          36       Balough  v.  Fairbanks  N.  Star  Bor .,  995  P.2d  245,  262  (Alaska  2000)  



(holding that junkyard owner had vested right to operate junkyard after zoning change  

                                            

made  that  land  use  unlawful).    This  is  consistent  with  the  general  rule  in  other  

jurisdictions.   See 4 Z 

                               IEGLER ,  supra note 26, at  72:2.  



          37       Balough , 995 P.2d  at 261 (quoting                  Earth Movers of Fairbanks, Inc. v.  



Fairbanks N. Star Bor ., 865 P.2d 741, 742 n.1 (Alaska 1993)).  



                                                           -15-                                                      6917
  


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

                                                                                        

government purposes.  The 1987 ballot initiative stated that the purposes of the setback  



requirement were to "maintain fisheries, protect water quality, and maintain public access  



              38 

                                                                              

to water,"        and, as discussed above, the requirement may be characterized as serving a  



                 

number of other purposes, including providing for open space, recreation, and avoiding  



                 39  

congestion.            Prohibiting  expansion  of  nonconforming  structures  serves  the  same  



interests. These purposes are expressly within the government's power under article VIII,  



sections 2, 3, 4, 14, and 17 of the Alaska Constitution.  



                    Current MSBC 17.55.020 and former MSBC 16.25.480 expressly allow  



                         

nonconforming status for structures completed prior to January 1, 1987.  In fact, the  



                                                                                                         

Borough gave the house on Tweedy's property legal, nonconforming status in 1988.  



                                                

Further, MSBC 17.80.020 gives legal, nonconforming status to "structures built lawfully  



                                                               

and made nonconforming by adoption of subsequent ordinances."  MSBC 17.55.020  



                                                          

does not, as Tweedy contends, require "immediate cessation of a nonconforming use";  



    

it simply  requires  cessation  of  unlawful  uses.    Accordingly,  the  ordinance  does  not  

violate substantive due process.40  



          38       Matanuska-Susitna Borough, Alaska, Setback & Public Easement Initiative  



Areawide (May 5, 1987).  



          39       See  Matanuska-Susitna  Borough,  Alaska,  Ordinance  81-068  (June  18,  



1981) (codified as former MSBC 16.05.015(A) (1981)); Kohl v. Legoullon , 936 P.2d  

514, 520 (Alaska 1997) (quoting Town of Portland v. Wis. Elec. Power Co., 543 N.W.2d  

                                                                                             

559, 560-61 (Wis. App. 1995)).  



          40       We also observe that because Tweedy's stairwell addition was unlawful  



when it was constructed, he had no vested right to keep the stairwell, and the Board's  

                                                                                    

application of the setback requirement to his property does not raise any procedural due  

                                                         

process issues.  



                                                            -16-                                                       6917
  


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

                   2.       Takings  



                   Article I, section 18 of the Alaska Constitution provides that "[p]rivate  



                                                                        

property shall not be taken or damaged for public use without just compensation."  But  



                                                                                           41  

a taking can only occur where a private property interest exists.                              When Tweedy took  



possession  of  his  property  on  May  11,  1988,  there  was  a  75-foot  shoreline-setback  



provision in effect that prohibited him from expanding the existing structures on his  



property.  Because Tweedy never had any lawful property interest in expanding the  



                                                    

structures on his property within 75 feet of the lakeshore, we need not consider his claim  



that the setback provision constituted a taking.  Enforcing the setback provision with  



                                                                                          

regard to Tweedy's stairwell construction did not deprive him of any property interest,  



thus it was not a taking.  



          D.       The Board Did Not Err By Failing To Grant A Variance.  



                                                                                                                  

                   Tweedy argues that the Board erred by concluding that his stairwell was not  



                                                                                                    

a legal, nonconforming structure.  The Board concluded that in order to be eligible for  



a shoreline-setback exemption, Tweedy needed to produce evidence showing that he  



constructed the stairwell before January 1, 1987.  The Board's conclusion is correct.  



                   MSBC 17.80.020 gives legal, nonconforming status to "structures built  



lawfully       and     made       nonconforming            by    adoption       of    subsequent         ordinances."  



MSBC 17.80.060(A)(2) provides that:  



                        

                   A nonconforming structure may not be enlarged or altered  

                                                         

                   vertically or horizontally, in a way which would increase the  

                                                  

                   height, width, depth, area, or volume of the structure except  

                                                                                       

                   as  specifically  allowed  by  current  code  for  similar  new  

                                                                                   

                   structures in that location. A nonconforming structure which  



          41       See  Philips  v.  Wash.  Legal  Found .,  524  U.S.  156,  163-172  (1998)  



                                                                                     

(considering whether "interest income generated by funds held in IOLTA accounts is  

private property for purposes of the Fifth Amendment's Takings Clause").  



                                                           -17-                                                        6917  


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

                 straddles a required minimum setback line may be expanded  

                 vertically or horizontally only where the expansion is located  

                                                                                   

                 outside the minimum setback distance.  



MSBC 17.55.020(C) exempts construction completed prior to January 1, 1987 from the  

                                                                                              



shoreline-setback  requirement,  as  long  as  the  owner  was  unaware  of  the  setback  



violation.  



                 As we have discussed, the 75-foot shoreline-setback requirement applied  



when Tweedy constructed his stairwell addition.  The Borough recognized Tweedy's  



house's legal, nonconforming status in 1988, but the subsequent addition was plainly  



prohibited by former MSBC 16.25.480.  And because no evidence suggests that the  



                                                                             

stairwell addition was constructed before January 1, 1987, it is not eligible for a variance  



under MSBC 17.55.020(C).  



V.       CONCLUSION  



                 For the reasons discussed, we AFFIRM the judgment of the superior court.  



                                                     -18-                                               6917
  

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