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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 (8/15/2014) sp-6940

Tweedy v. Matanuska-Susitna Borough Board of Adjustment and Appeals (8/15/2014) sp-6940

        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.                                         ) 

                                                   )       OPINION ON REHEARING  

                                                                                                   

MATANUSKA-SUSITNA                                  ) 

BOROUGH BOARD OF                                   )       No. 6940 - August 15, 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  



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 from the Borough's setback requirement.  The  

                         


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

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.  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  

                                                                                                                  1   On  

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



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  



                                       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  

completing  construction.     In  November  1986  the  Assembly  reduced  the  setback  to  

                                                                     



          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).  



         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)).  



                                                           -2-                                                        6940  


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

           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  



                            10  

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



                                                 11  

                                                      MSBC 17.55.020(C) maintains the exemption for  

of former MSBC 16.25.480(A).                                                            



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  

                                      



          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).  



          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."  



                                                               -3-                                                         6940
  


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

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  



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.  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  



          12       See former MSBC 16.25.480(C).  



                                                            -4-                                                          6940  


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

                                                                         

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  shoreline-setback  



exemption  because  it  was  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  



                                                                                                                

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



                                                              -5-                                                        6940
  


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

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  



                                                                                                   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  



          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).  



          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).  



                                                            -6-                                                      6940
  


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

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  

                                                                



or  violation  of  due  process,  and  the  addition  was  not  from  the  shoreline-setback  



requirement.  



         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 MSBC 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.                                                       



         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).  



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

                                                                                                     (continued...)  



                                                          -7-	                                                      6940  


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

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  



                                                                                   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  

subdivisions," and former MSBC 16.25.100 references access to subdivisions.24   These  

                                                                                                                      



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

                                                                                        



          20(...continued) 

MSBC 16.25.480 was enacted in 1981.  



          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).  

                                                                            



                                                             -8-                                                           6940  


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

                                                                       

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  



                                                                                                     

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  and  neither  the  state  legislature  nor  the  Borough  

                                                                                                            

mutually  exclusive  categories,  



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.  

                                                                    



           25        Id.  



          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.").  



                                                                  -9-                                                           6940
  


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

                                                          

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



                                                                   

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 

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,  

                                                                                                        (continued...)  



                                                           -10-	                                                    6940  


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

                                                                                              

                    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.  



          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  



          31(...continued) 

                    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).  



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

            

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

                                                                                                           (continued...)  



                                                            -11-                                                       6940
  


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

          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  

                                                                                                 



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  

                                                                                 



          34(...continued) 

                   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.  

                                                                                             



          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).  



                                                           -12-	                                                     6940
  


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

                                                                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  

                                                                                                              



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  

to water,"38 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";  

                                                                                              



          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)).  



          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)).  



                                                            -13-                                                       6940
  


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

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

                                                           

violate substantive due process.40  



                   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 An Exemption.  



                   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  



         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.  



         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").  



                                                         -14-                                                    6940
  


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

                                                                                  

                   structures in that location. A nonconforming structure which 

                   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  an  



exemption under MSBC 17.55.020(C).  



V.       CONCLUSION  



                                                                                                      

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



                                                          -15-                                                    6940
  


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

          In the Supreme Court of the State of Alaska  



Clifton O. Tweedy,                                   ) 

                                                     )       Supreme Court No. S-15034 

                                   Appellant,        ) 

               v.	                                   )                   Order  

                                                     )           Petition for Rehearing  

Matanuska-Susitna Borough                            ) 

Board of Adjustment and Appeals,                     ) 

                                                     ) 

                                   Appellee.         )    Date of Order: August 15, 2014  

                                                     ) 

Trial Court Case # 3AN-12-04609CI  



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

                                 Bolger, Justices  



        On consideration of Appellant's Petition for Rehearing filed June 27, 2014 and 

Appellee's response filed on July 14, 2014,  



        IT IS ORDERED :  



        1.      The Petition for Rehearing is GRANTED .  



                                                                             ITHDRAWN .  

        2.      Opinion No. 6917, issued on June 20, 2014, is W 



        3.      Opinion No. 6940, is issued on this date in its place.  



        The Opinion on Rehearing deletes references to "variance" but retains 

references to "exemption" with regard to the shoreline-setback.  See Opinion on  

Rehearing at pages 2, 5, 9, 17, and 18.  



        Entered at the direction of the court.  



                                                         Clerk of the Appellate Courts 



                                                                      /s/  

                                                                                                            

                                                         Marilyn May  


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

Clifton O. Tweedy  v. Matanuska-Susitna Borough Board of Adjustment 

Supreme Court No. S-15034 

Order of August 15, 2014 

Page 2  



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          Palmer AK 99645
  

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