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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Corkery v. Municipality of Anchorage (9/14/2018) sp-7292

Corkery v. Municipality of Anchorage (9/14/2018) sp-7292

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                      


CORKERY,                                                         )                                     

                                                                      Supreme Court No. S-16684  



                                                                 )    Superior Court No. 3AN-15-06252 CI  



                                                                 )    O P I N I O N  



MUNICIPALITY OF ANCHORAGE,  )                                                                                     

                                                                      No. 7292 - September 14, 2018  


                                Appellee.                        )  




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


                     Judicial District, Anchorage, Dani Crosby, Judge.  


                     Appearances:  David D. Clark, Law Office of David Clark,  


                     Anchorage, for Appellants.   Samuel C. Severin, Assistant  


                     Municipal   Attorney,   and                     Rebecca   A.   Windt-Pearson,  


                     Municipal Attorney, Anchorage, for Appellee.  


                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                      and Carney, Justices.  


                     BOLGER, Justice.  



                     Homeowners appeal the denial of their application for a variance by the  


Municipality of Anchorage Zoning Board of Examiners and Appeals. The homeowners'  


house exceeds the 30% lot coverage limit for their zoning district by over 10% due to a  


renovation  performed  in  1983  by  a  prior  owner.                                 The  Board  denied  the  variance  

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

application because it concluded that three of the seven standards required to grant a                                                                                                                                                                                                                                                                                                   

variance had not been satisfied.                                                                                                                   On appeal, the homeowners challenge the Board's                                                                                                                                                        

interpretation of the variance standards.                                                                                                                                         They also argue that the equitable doctrine of                                                                                                                                                     

laches bars the Board from denying their variance request.                                                                                                                                                                                                                 Finally, the homeowners                                  

argue that the Board's consideration of a memo written by a Municipality attorney                                                                                                                                                                                                                                                                       

violated their due process rights and that this violation warrants a trial de novo in the                                                                                                                                                                                                                                                 

superior court.                                                     

                                                           After independently interpreting the variance standards, we agree with the                                                                                                                                                                                                                                             

Board's interpretation. In light of our de novo interpretation of these variance standards,                                                                                                                                                                                                                                                       

any error in the memo's legal advice or in the process of the Board's consideration is                                                                                                                                                                                                                                                                                                 

harmless and does not warrant trial de novo.                                                                                                                                                               We also conclude that the homeowners                                                                                      

cannot invoke the defense of laches because, in the zoning context, this defense is                                                                                                                                                                                                                                                                                                   

available only to defendants in a zoning enforcement action, and here the homeowners                                                                                                                                                                                                                                                 

areplaintiffs                                           seekingaffirmativerelief. We                                                                                                         therefore affirmthe                                                                   superior court's decision  

affirming the Board's denial of the homeowners' variance request.                                                                                                                                                                                                                                         

II.                           FACTS AND PROCEEDINGS                                            

                              A.                           Facts  

                                                           PatrickandBrookeCorkery haveowned their Anchoragehomesince1998.                                                                                                                                                                                                                                                                       

                                                                                                                                                                                           1   corner lot; the lot slopes downhill to the  

The   house sits on an 11,250-square-foot                                                                                                                                                                                                                                                                                                                                      

southwest  at  a  minor  grade.                                                                                                                 The  Municipality  of  Anchorage  originally  issued  a  


certificate of occupancy in 1965 permitting a two-story, 2,359-square-foot house on the  


lot.  In 1965 (and currently) the lot was zoned in R-1A, for which the maximum lot  


                              1                            This is the recorded plat size, but a 2014 survey indicated that the lot is                                                                                                                                                                                                                                                 

actually 10,970 square feet.                                                                                               This minor discrepancy does not affect the outcome of this                                                                                                                                                                                          


                                                                                                                                                                                          -2-                                                                                                                                                                             7292

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 coverage is 30%. In 1969 a building permit was issued for the addition of a 184-square-                                                                                                                                                                                                                                                                                                                  

 foot greenhouse to the home.                                                                                                                                  

                                                                        In 1983 a prior owner substantially expanded the house so that the new lot                                                                                                                                                                                                                                                                                                                 

 coverage significantly exceeded the 30% limit.                                                                                                                                                                                                               Although the former owner claims she                                                                                                                                                            

 secured all necessary building permits for the addition, the Municipality has no record                                                                                                                                                                                                                                                                                                                                                      

 of any permit being issued for the home expansion.  The home's footprint is currently  

4,401 square feet.                                                                                  The footprint of the home has not increased since 1983, with the                                                                                                                                                                                                                                                                                           

 exception of 60 square feet that the Corkerys added to the deck (without obtaining a                                                                                                                                                                                                                                                                                                                                                                                     

permit) in 2011.                                                                         The Municipality has since taxed the property based on the increased                                                                                                                                                                                                                                                                

 square footage.                                                                     

                                                                        In 2013 the Corkerys were replacing the home's roof when they discovered                                                                                                                                                                                                                                                                       

 significant rot in the roof and in the wall between the home interior and the attached                                                                                                                                                                                                                                                                                                                                            

greenhouse.     This   damage   apparently   placed   the   greenhouse   at   risk   of   imminent  

 structural   failure   and   required   immediate   attention.     The   Corkerys   applied   for   a  

 construction permit to                                                                                                          tear down and rebuild the greenhouse.                                                                                                                                                                                       In August 2014 the                                                                               

Municipality issued the Corkerys a conditional permit that allowed them to perform the                                                                                                                                                                                                                                                                                                                                                                           

necessary repairs at their own risk but required them to apply for and obtain a zoning                                                                                                                                                                                                                                                                                                                                              

variance before a certificate of occupancy would be issued for the home following the                                                                                                                                                                                                                                                                                                                                                                           

repairs.   The variance was required because the footprint of the home exceeded 30% of                                                                                                                                                                                                                                                                                                                                                                               

the lot coverage and therefore violated the R-1A zoning restriction.                                                                                                                                                                                                                                                                                                       2  

                                    2                                   See   Anchorage   Municipal   Code   (AMC)   21.40.030(H)   (2015)   (setting  

maximum lot coverage for R-1A zoned districts at 30%).  All citations to Title 21 (the                                                                                                                                                                                                                                                                                                                                                                     

zoning portion) of the AMC in this opinion are to the "old code," which expired on                                                                                                                                                                                                                                                                                                                                                                                

December 31, 2015, because this code was in effect when the Corkerys applied for the                                                                                                                                                                                                                                                                                                                                                                            

variance and they elected to have their application reviewed under it.                                                                                                                                                                                                                                                                                                                 

                                                                                                                                                                                                                                  -3-                                                                                                                                                                                                                   7292

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


          B.	       Zoning Board Of Examiners And Appeals Proceedings  


                    The Corkerys applied for a zoning variance in October 2014 to allow a lot  


coverage of 40.12%, a variance of 10.12% over the permitted lot coverage.   Their  


application urged that a variance was required in order to allow the home "to remain and  


obtain occupancy."  In a later addendum to their application, the Corkerys offered to  


remove the portion of their deck that they had added in 2011 along with a portion of the  


deck that encroached on the secondary front-yard setback (which would reduce the total  


lot coverage to 39.4%) but otherwise proposed maintaining the home's current footprint.  


                    Municipality  planning  staff  conducted  an  analysis  of  the  variance  


application and issued a memo recommending that the application be denied. In making  


this  recommendation,  the  memo  considered  the  seven  standards  used  to  evaluate  


applications for a variance from zoning regulations:  


                    a.	        There  exist  exceptional  or  extraordinary  physical  


                               circumstances of the subject property such as, but not  


                               limited  to,  streams,  wetlands,  or  slope,  and  such  


                              physical circumstances are not applicable to other land  


                               in the same district;  


                    b.	       Because  of  these  physical  circumstances,  the  strict  


                               application of this code would create an exceptional or  


                              undue hardship upon the property owner, and would  


                               deprive the applicant of rights commonly enjoyed by  


                               other properties in the same district under the terms of  


                              the zoning ordinance;  


                    c.	        The   hardship   is           not   self-imposed,   and   special  


                               conditions and circumstances do not result from the  


                               actions  of  the  applicant  and  such  conditions  and  


                               circumstances do notmerelyconstituteinconvenience;  


                    d.	        The variance, if granted, will not adversely affect the  


                              use of adjacent property as permitted under this Code;  

                                                                -4-	                                                        7292

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                                  e.	             The variance, if granted, is in keeping with the intent                                          

                                                  of   this   Code,   will   not   change   the   character   of   the  

                                                  zoning district in which the property is located, and                                                                      

                                                  will not permit a use that is not otherwise permitted in                                                                        

                                                  the district in which the property lies;                                                       

                                  f.	             The variance, if granted, does not adversely affect the                                                                      

                                                  health,   safety,   and   welfare   of   the   people   of   the  

                                                  Municipality of Anchorage; and                                                    

                                  g.	             The variance granted is the minimum variance that                                                                         

                                                                                                                                                                         [  ]   


                                                  will make possible a reasonable use of the land.                                                                              


The memo concluded that four of the seven standards, standards one, two, three, and  

                                                                                     4   The memo recommended in the alternative that, if  

 seven, were not substantially met.                                                                                                                                        

the Board found that all the standards were satisfied, it should grant the variance on the  


condition that a 325-square-foot deck, including the portion added in 2011, be removed.  


                                 In November 2014, while the Corkerys' variance application was pending,  


assistant municipal attorney Quincy Hansell wrote a memo to senior municipal planner  


Margaret O'Brien entitled "Update on Variance Law."  The Hansell memo was drafted  


in response to an August request from O'Brien for an update on the law governing  


variance requests.  O'Brien's request stemmed from an argument made by a party in a  


recent variance proceeding.  The party contended that our opinion in City & Borough of  


Juneau v. Thibodeau5  had been overruled.   At the time that she requested the legal  


opinion, O'Brien had no knowledge of the Corkerys' case - indeed, their variance  


                 3               AMC 21.15.010(C)(1). The memo, the Board, and the parties refer to these                                                                                                   

 standards by number rather than letter, and we do the same.                                                                                            

                 4               See AMC 21.15.010(C), (F)(1) (providing that the Board must find that the  


variance application "substantially meets" the seven standards before the Board may  


grant the variance).  


                 5                595 P.2d 626 (Alaska 1979).  


                                                                                                        -5-	                                                                                               7292

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application had not yet been submitted - and O'Brien did not learn of the Corkerys'                                                                                                     

application until about one year after requesting the memo.                                                                                      

                                The Hansell memo makes a very brief reference in its introduction to the   

specific case that spurred O'Brien's request, but otherwise its analysis is framed in                                                                                                                      

general terms and does not reference a specific case.                                                                          The memo first concludes that the                                          

relevant portion of                          Thibodeau  - in which we set out the standard for granting a variance                                                                         

-   was still good law.                                    It asserts that the only portion of                                                  Thibodeau     that had been                          

                                                                                                                                                                                                 6     The  

subsequently overruled related to an ancillary issue of statutory interpretation.                                                                                                                     

Hansell  memo  then  provides  an  overview  of  the  law  governing  variance  requests,  


including this court's case law, the relevant Anchorage Municipal Code provisions, and  


case law from other jurisdictions. The crux of the memo's message on this point was the  


paucity of Alaska-specific case law on variance standards.  The memo concludes by  



                                There is very little case law available to indicate any trend in  


                                Alaska because very few decisions made at the local level are  


                                appealed. Nationwide, the trend in case law over recent years  


                                shows astrengthening ofthestandards for granting variances.  


                                Yet studies show that at the local level, boards tend to grant  


                                most requests for variances - with little regard to any rules  


                                of law expressed by the courts.  We imagine many of these  


                                would be overturned, if appealed.  We expect the [Board] to  


                                diligently apply and follow the law to avoid generating costly  


                                appeals.  (Footnotes omitted.)  


                                O'Brien  received  the  Hansell  memo  and  distributed  it  to  the  Board's  


members in early December 2014.  A week later, on December 11, the Board held the  


first of two hearings in which it reviewed the Corkerys' variance application.   After  


                6               See State v. Alex                       , 646 P.2d 203, 208 n.4 (Alaska 1982) ("Our cases listed                                                                    

above [including                          Thibodeau] are . . . no longer authoritative to the extent that they hold                                                                                   

for a mechanical application of the plain meaning rule.").                                                                                  

                                                                                                     -6-                                                                                             7292

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presentations from both municipal staff                                                                   and the Corkerys' representative, the Board                                                       

voted to postpone voting on the application.                                                                     The postponement was to allow municipal                                           

planning staff to provide additional information, including whether the Corkerys' home                                                                                                                         

was eligible for nonconforming rights.                                                                Municipal staff indicated that if the Corkerys                                                 

obtained a nonconforming-rights determination for the lot coverage, a variance would   

                                           8   After voting for postponement, the Board Chair noted that he had not  

not be necessary.                                                                                                                                                                                                    

"had a chance to read the [Hansell memo] that was in [the Board's] packet," but he  


planned to ask questions about it at the next meeting. Another Board member responded  


that he had read the Hansell memo and "[i]t added clarity as hoped for," but he was  


"interested in other [B]oard members' comments either offline or at the next meeting to  


help further guide [him] in [his] efforts to act appropriately."9  


                                  The  Board  again  considered  the  Corkerys'  variance  application  at  its  


January  8,  2015  meeting.                                              At  the  conclusion  of  the  hearing,  the  Board  denied  the  


application by a vote of 4-2.  One of the Board members referenced the Hansell memo  


in explaining her vote for denial.  


                 7                At the hearing the Municipality appeared to change its position from that                                                                                                        

in the planning staff memo with regard to standard three.                                                                                            It stated that standard three                              

was "partially met" and noted that "removing . . . over a thousand square feet from the                                                                                                                              

existing house is considered more than just an inconvenience."                                                         

                 8                A structure is eligible for nonconforming status if it lawfully "existed at the  


original effective date of adoption . . . of applicable regulations" and has not increased  


its nonconformity since that date.  AMC 21.55.040(A).  If a structure is determined to  


be  nonconforming,  it  "may  be  continued  so  long  as  it  remains  otherwise  lawful,"  


notwithstanding the applicable zoning regulations.  Id.  


                 9                After the first hearing, the municipal planning staff issued a supplementary  


memo addressing whether the Corkerys' home was eligible for nonconforming rights.  


The supplementary memo concluded that the home was not eligible for nonconforming  


status because the expansion of the house postdated enactment of the lot coverage limit.  


                                                                                                           -7-                                                                                                  7292

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


                    In its written findings of fact issued two months later, the Board found that  


standards one, two, and seven were not met.  Standard one was not met because "[t]he  


physical condition of the land [did] not contribute to the need for a variance from lot  


coverage."  The findings noted that the dissenting Board members found this standard  


met based on the lot's corner position and sloping topography, as well as the discrepancy  


between the recorded plat size and the lot's actual size.  The Board found that standard  


two was not met because, even if the lot was oddly shaped and sloping, these physical  


circumstances did "not necessitate increasing the building footprint over the maximum  


allowed."   The dissenting members stated, however, that "reducing the lot coverage  


would be an undue hardship because parts of the house would need to be removed."  


Finally, the Board found that standard seven was not satisfied because the Corkerys  


could  make  reasonable  use  of  the  property  without  the  variance.                                    The  dissenters  


countered that this standard was met because "removing over 1,000 square feet of  


building footprint to meet the maximum lot coverage requirement is not reasonable."  


          C.        Superior Court Proceedings  


                    The Corkerys appealed the Board's decision to the superior court.  During  


the superior court proceedings, the Corkerys sought to obtain the Hansell memo fromthe  


Municipality because Board members had referenced it during the hearings.   After  


initially refusing on the basis of attorney-client privilege, the Municipality ultimately  


waived the privilege and produced the memo but objected to the Corkerys relying on the  


memo in their appeal.   The Corkerys then moved to add the memo to the record on  


appeal, arguing that it was necessary to the resolution of their case. They also requested  


a trial de novo in the superior court on the basis that "the [Municipal] Attorney's Office  


secretly poisoned the well" in the Board proceedings by distributing the Hansell memo  


to the Board "shortly before the Corkerys['] variance petition was heard."  (Emphasis  



                                                               -8-                                                         7292

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                                               The superior court denied the Corkerys' motion to expand the record on                                                                                                                                                                                

appeal to include the Hansell memo.                                                                                                After the superior court denied their motion for                                                                                                                

reconsideration, the Corkerys petitioned this court for interlocutory review; we denied                                                                                                                                                                                               

the petition.   While that petition was pending, the superior court denied the motion for                                                                                                                                                                                                          

a trial de novo.                                      

                                               Proceedings continued in the superior court, where the Corkerys raised                                                                                                                                                                   

three primary arguments:                                                                   the Board incorrectly interpreted the variance provision to                                                                                                                                                

require compliance with all seven standards, rather than just a substantial number of                                                                                                                                                                                                                 

them;   their   existing   home   constituted   an   exceptional   or   extraordinary   physical  

circumstance necessitating a variance; and the Municipality was barred by the doctrine                                                                                                                                                                                           

of laches from refusing to grant the variance.                                                                                                                The superior court rejected each of these                                                                                     

arguments and affirmed the Board's decision to deny the variance.                                                                                                                                                                         

                                               The Corkerys appeal the superior court's decision.                                                                                               

III.                    STANDARD OF REVIEW                                              

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

                                                                                                                                                                                                                                                                                 10          As a  

independently review the merits of the underlying administrative decision."                                                                                                                                                                                                                              

general matter, our "review of zoning board decisions is narrow and . . . a presumption  


of validity is accorded those decisions."11  However, in this case the Corkerys allege that  


the Board's interpretation of the variance standards in the zoning code was improperly  


influenced by the Hansell memo.  Accordingly, we decline to grant deference to the  


Board's  interpretation  here  and  instead  interpret  the  variance  standards  de  novo,  


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

                        11                    Native Vill. of Eklutna v. Bd. of Adjustment, 995 P.2d 641, 643 (Alaska  


2000) (omission in original) (quoting S. Anchorage Concerned Coal., Inc. v. Coffey,  


862 P.2d 168, 173 (Alaska 1993)).  


                                                                                                                                                  -9-                                                                                                                                        7292

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


exercising our independent judgment.                                                                                       We interpret the variance standards "according                                                                 

to reason, practicality, and common sense, considering the meaning of the [ordinance's]                                                                                                                                           

                                                                                                                                                        13       We will adopt "the rule of law that  

language, its legislative history, and its purpose."                                                                                                                                                                                                            

                                                                                                                                                                                                  14        Finally, whether the  

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


doctrine of laches applies to a claim is a question of law reviewed de novo.15  



IV.	                 DISCUSSION  


                     A.	                 The Corkerys, As Plaintiffs, Cannot Invoke Laches To Obtain The  


                                         Affirmative Relief Of A Variance.  


                                         The Corkerys argue that they should be permitted to invoke the doctrine of  


laches to bar the Municipality from denying them a variance.  The Corkerys claim that  


laches is available to them because, even though they are nominally the plaintiffs in this  


action  (given  that they initiated  the variance application),  they  are functionally  the  

                     12                  See Balough v. Fairbanks N. Star Borough                                                                                                 , 995 P.2d 245, 254 (Alaska                                      

2000) ("Where the interpretation of a zoning ordinance presents only a question of                                                                                                                                                                                  

statutory construction which does not involve agency expertise or the formulation of                                                                                                                                                                                

fundamental policies, we apply the independent judgment standard of review.").                                                                                                                                                                               Our  

decision to review the variance standards de novo moots the Corkerys' due process                                                                                                                                                                  

arguments relating to the allegedly erroneous legal analysis contained in the Hansell                                                                                                                                                              

memo.   And we need not decide whether there was any legal error in distributing the                                                                                                                                                                              

memo to the Board because any error was clearly harmless given that the memo does not                                                                                                                                                                             

contain any information specific to this case.                                                                                                As for the Corkerys' argument that the                                                                              

record should be supplemented to include the Hansell memo, we note that the memo is                                                                                                                                                                                   

included in the superior court record for our review.                                                                                     

                     13                   Tweedy  v.  Matanuska-Susitna  Borough  Bd.  of  Adjustment  & Appeals,  


332 P.3d 12, 16 (Alaska 2014) (quoting McDonnell v. State Farm Mut. Auto. Ins. Co.,  


299 P.3d 715, 721 (Alaska 2013)).  


                     14                  Id. (quoting Gillis v. Aleutians E. Borough, 258 P.3d 118, 120-21 (Alaska  




                     15                  Kollander v. Kollander, 322 P.3d 897, 902 (Alaska 2014).  


                                                                                                                                -10-	                                                                                                                       7292

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

defendants   against   the   Municipality's   denial   of   an   unconditional   building   permit.   

According to them, the Municipality's denial of the building permit was "offensive in                                                                                                                                                                               

nature," which put the Municipality "in the position of a plaintiff."                                                                                                                                                      Therefore, the   

Corkerys claim, their resulting                                                              varianceapplication was essentially a defense                                                                                              against that   

denial, and they are permitted to invoke laches as a defense.                                                                                                                           The Municipality counters                                

that the doctrine of laches may be used only as a "shield" against liability rather than as                                                                                                                                                                         

a "sword" to compel action, i.e., the granting of a variance.                                                                                                                            The superior court agreed   

with the Municipality and concluded that the Corkerys could not invoke the doctrine of                                                                                                                                                                              

laches as a basis to reverse the Board's variance denial.                                                                                                                    

                                         "Laches is an equitable defense available 'when a party delays asserting a                                                                                                                                                    

                                                                                                                     16   In order for laches to bar a claim, two elements  

claim for an unconscionable period.' "                                                                                                                                                                                                          

must be shown:  (1) the plaintiff unreasonably delayed seeking relief, and (2) this delay  


has resulted in "prejudice to the defendant."17   The party raising laches bears the burden  


                                                                                                                        18         But before determining whether  these two  

of demonstrating  these two elements.                                                                                                                                                                                                                         


elements are satisfied, we must decide the threshold question whether the laches defense  


may be invoked by the Corkerys at all.19  


                     16                  Burkev.Maka                                 , 296          P.3d 976, 979 (Alaska2013) (quoting                                                                               Whittle v. Weber                                   ,  

243 P.3d 208, 217 (Alaska 2010)).                                                                            

                     17                  Id.  (quoting   Whittle,  243  P.3d  at  217).   

                     18                  Schaub  v.  Schaub,  305  P.3d  337,  343-44  (Alaska  2013).  

                     19                  See  Kollander,   322  P.3d   at   902   (separating  the  question  whether  laches  

applies  to  the  claim  from  the  question  whether  the  elements  of  laches  are  satisfied).   

                                                                                                                               -11-                                                                                                                        7292

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                       We previously considered laches in the context of a zoning dispute in                                                        


Jackson v. Kenai Peninsula Borough ex rel. City of Kenai                                           .                                        

                                                                                                        That case involved a zoning  


enforcement action against the owner of an auto repair business located in an area of  

                                                         21    We concluded that laches did not bar Kenai from  



Kenai zoned for residential use. 

bringing thezoningenforcement action, but noted wewerenotforeclosing thepossibility  


that laches could ever apply in such an action.22  We instructed, however, that the defense  


of  laches  "should  not  be  permitted  to  frustrate  the  enforcement  of  a  valid  zoning  


regulation except in the clearest and most compelling circumstances."23   As an example  


of a case where laches may be properly invoked as a defense in a zoning enforcement  


action, we cited the example of an innocent third party purchasing a nonconforming  


property.24           The Corkerys rely on Jackson to argue that the specific circumstances of  


their case warrant the application of laches. However, even if we accept that laches may  


provide a defense to a zoning enforcement action in some circumstances, this conclusion  


would  not  control  our  decision  in  this  case.                                 We  have  repeatedly  and  consistently  



characterized laches as an equitable defense that may be asserted by a defendant.     


            20          733  P.2d   1038  (Alaska   1987).   

            21         Id.  at   1038-40.  

            22         Id.  at   1044.  

            23         Id.  (quoting  Universal  Holding  Co.  v.  Twp.  of  N.  Bergen,  150  A.2d  44,  49  

(N.J.  Super.  App.  Div.   1959)).   

            24         Id.  at   1043.  

            25         See,  e.g.,  Kollander  v.  Kollander,  322  P.3d  897,  903  (Alaska  2014);  Burke  

v.  Maka,  296  P.3d  976,  979  (Alaska  2013);  Whittle  v.  Weber,  243  P.3d  208,  217  (Alaska  


                                                                        -12-                                                                   7292

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

                             Furthermore many other courts have specifically noted that laches may not                                                                            


be used as a sword to obtain affirmative relief but rather only as a defensive shield.                                                                                                    

Indeed, in the specific context of a zoning dispute, a Florida appeals court refused to  


                                                                                                                                 27  There, a property owner  

permit a similarly positioned property owner to invoke laches.                                                                                                              


sued the county seeking a declaration that the owner's building permit was valid after the  


county attempted to revoke the permit.28                                                The owner argued that the county was barred  


by laches from revoking the permit, where the county had initially granted the permit a  


decade earlier.29   The Florida court rejected this argument, reasoning that because laches  


is "a shield to an action," it had "no application to the case at bar where [the owner was]  


seeking to use it as a sword" to compel the county to grant a permit.30  


                             For similar reasons, laches is not available to the Corkerys.  The Corkerys  


are plaintiffs in this action and are attempting to use laches to compel the Municipality  


to grant them a variance (or issue them an occupancy permit without a variance).  The  


Corkerys are not defendants in a zoning enforcement action, there is nothing in the  


record indicating that the Municipality has initiated such an action, and at oral argument  


the Municipality disclaimed any intention to do so in the future.  Our case law provides  


no basis for allowing the Corkerys, the plaintiffs in this suit, to invoke the defense of  


              26            See, e.g.         ,  E.D. Sys. Corp. v. Sw. Bell Tel. Co.                                      , 674 F.2d 453, 461 (5th Cir.                        

 1982);  Halcon Int'l, Inc. v. Monsanto Austl. Ltd.                                                       , 446 F.2d 156, 159 (7th Cir. 1971);                            

 United States v. Portrait of Wally                                       , 663 F. Supp. 2d 232, 265 n.24 (S.D.N.Y. 2009);                                                

LaPrade v. Rosinsky                         , 882 A.2d 192, 198 (D.C. 2005).                          

              27             Corona Props. of Fla., Inc. v. Monroe Cty., 485 So. 2d 1314 (Fla. Dist.  


App. 1986).  


              28            Id. at 1316.  


              29            Id. at 1315-16.  


              30            Id. at 1318.  


                                                                                        -13-                                                                                 7292

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

laches to compel the Municipality to grant a variance, when the Municipality has not and                                                                                                                                                              

will not initiate a zoning enforcement action.                                                                                       The superior court therefore did not err in                                                                           

concluding that the Corkerys cannot invoke laches.                                                                                                        

                    B.	                 The Board Did Not Err In Interpreting The Variance Provision In The                                                                                                                                          

                                        Municipal Code.   

                                        The Corkerys next challenge the Board's interpretation of an Anchorage                                                                                                

Municipal Code provision governing variances, AMC 21.15.010(C), on several bases.                                                                                                                                                                                   

First, they argue that the Board incorrectly interpreted this provision to require that a                                                                                                                                                                    

variance application meet all seven standards in order for the variance to be granted.                                                                                                                                                                              

Second, they argue that the Board interpreted standard one, requiring "exceptional or                                                                                                                                                                     


extraordinary physical circumstances of the subject property,"                                                                                                                                                                                              

                                                                                                                                                                                               too narrowly so that it  


excluded artificial structures on the property. Finally, they argue that the Board erred in  



its interpretation of standard two, which requires "exceptional or undue hardship," 


becausetheBoard afforded insufficient weight tothechallengeofconformingtheir home  


to the lot coverage restriction.   As noted above, we will interpret all portions of the  


variance provision de novo, without deference to the Board's construction.  


                                        1.	                 The variance provision requires an applicant to substantially  


                                                            meet each of the seven variance standards.  


                                        The                 Corkerys                            first               challenge                            the              Board's                         interpretation                                   of  


AMC 21.15.010(C).  Anchorage Municipal Code 21.15.010 provides the procedure for  


obtaining  a  variance.                                                Subsection  (C)  provides  that  a  variance  application  may  be  


initiated only by the property owner or the owner's authorized representative and that  


any application for a variance "must specify the facts or circumstances that are alleged  

                    31                  AMC 21.15.010(C)(1)(a).   



                                        AMC 21.15.010(C)(1)(b).  

                                                                                                                          -14-                                                                                                                                7292  

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


to show that the application substantially meets the following standards."                                                        Subsection  

(C)(1) then lists the seven standards used to evaluate an application for a variance from                                                     

                                  34    The  Board  implicitly  interpreted  subsection  (C)  to  require  a  

zoning   regulations.                                                                                                                               

variance applicant to satisfy all seven standards in order for the application to be granted.  


The Corkerys argue that the plain text of the provision does not require that a variance  


applicant satisfy all of the seven standards but rather only a substantial portion of them.  


The Corkerys assert that because the Board found four of the seven standards satisfied,  


substantially all of the seven standards are met.  


                       The issue posed by this argument is whether the phrase "substantially  


meets" requires a variance application to substantially meet each of the seven standards  


or requires the application to meet only a substantial number of the seven standards. The  


former  reading  is  more  natural.                          Subsection  (C)  requires  a  variance  application  to  


"substantially meet[] the . . . standards" - not to "meet substantially all of the standards"  


or "meet a substantial number of the standards."  


                       This interpretation is supported by two key features of subsection (C).  


First, this provision lists each of the seven standards separately, and the final standard,  


standard seven, is preceded by the word "and."  The choice of "and," rather than "or,"  


or  simply  no  conjunction,  to  precede  the  final  standard  evinces  the  Municipal  


Assembly's intent that all seven standards be satisfied in order for a variance to be  




            33         AMC  21.15.010(C).  

            34         AMC  21.15.010(C)(1).  

            35         See  City  &  Borough  of  Juneau v. Thibodeau,  595  P.2d  626,  634  (Alaska  

1979)   (concluding   that   both   of   the   variance   standards   under   Juneau   code   must   be  

satisfied,  based  in  part  on  use  of  the  conjunction  "and"  between  standards),  overruled  on  


                                                                       -15-                                                                  7292

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

                      Second,    the    seven    factors    themselves    are    partially    interdependent.   

Standards one and two build on each other, and each appears to assume the satisfaction                                      

of   the   other.     Standard   one   requires   that   the   property   contain   "exceptional   or  

                                                                36  And standard two requires that "[b]ecause of  

extraordinary physical circumstances."                                                                                                     

these physical circumstances, the strict application of [the zoning] code would create  


exceptional or undue hardship upon the property owner."37                                         Standard two, by referring  


to the "physical circumstances" required under the first standard, assumes that the first  


standard is satisfied.  This assumption is warranted only if all seven standards must be  


satisfied in order for a variance to be granted.  In other words, as the superior court  


noted, the standards are "interrelated, and they do not 'stand alone' well," meaning that  


an  applicant  cannot  satisfy  the  second  standard  without  also  satisfying  the  first.  


Although the remaining five standards are not necessarily phrased in an interdependent  


manner, the wording of standards one and two demonstrates that an applicant must  


satisfy all seven standards.  


                      Another  subsection  of  AMC  21.15.010  underscores  the  indication  of  


subsection (C) that all seven standards must be satisfied in order for an applicant to  


obtain a variance.  Subsection (F), entitled "Approval," establishes what is required in  


order for the Board to approve a variance request.  It mandates that the Board "shall  


conduct  an  inquiry  designed  to  find  whether  all  the  standards  for  issuance  of  the  


           35         (...continued)  


other grounds by State v. Alex, 646 P.2d 203 (Alaska 1982); cf. State v. Fyfe, 370 P.3d  


1092, 1100 (Alaska 2016) (noting that the use of conjunction " 'or' is 'to mark an  


alternative such as either this or that' " (quoting In re Jesusa V., 85 P.3d 2, 24 (Cal.  



           36         AMC 21.15.010(C)(1)(a).  


           37         AMC 21.15.010(C)(1)(b) (emphasis added).  


                                                                    -16-                                                              7292

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


variance have been met."                          It goes on to require that the Board make sufficient factual                                 

findings to support its decision and that a majority of the Board vote for the variance in                                                              


order for it to be granted.                        


                        When construing a municipal ordinance, "we must, whenever possible,  


interpret each part or section . . . with every other part or section, so as to create a  

                                     40  The language of subsection (F) strongly suggests that all of the  

harmonious whole."                                                                                                                                    

standards in subsection (C) must be met in order for the Board to grant the variance.  If  


the Assembly had intended for only substantially all of the standards to be met, it likely  


would have used different language in subsection (F).  


                        The Corkerys protest that it is possible to interpret subsection (F) in a  


different fashion.   They argue that this subsection's reference to "all the standards"  


simply refers to the three requirements of subsection (C): only the property owner or the  


owner's representative can initiate a variance application; the variance application must  


state with particularity the relief sought and the facts; and the application must show that  


substantially all of the seven standards are met.  Therefore, according to the Corkerys,  


subsection (F) does not require that all seven standards be met in order for the Board to  


grant a variance request.  


                        However,this argument is contradicted by the text of subsection (C), which  


refers to the list of seven standards as the relevant "standards":  "The application must  


state with particularity the relief sought and must specify the facts or circumstances that  


            38          AMC  21.15.010(F)(1)  (emphasis  added).   

            39          Id.  

            40          Alaska   Airlines,   Inc.   v.   Darrow,   403   P.3d   1116,   1127   (Alaska   2017)  

(quoting  State,  Dep't  of  Commerce,  Cmty.  & Econ.  Dev.,  Div.  of  Ins.  v.  Progressive  Cas.  

Ins.  Co.,   165  P.3d  624,  629  (Alaska  2007)).   

                                                                          -17-                                                                    7292

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


 are alleged to show that the application substantially meets                                                  the following standards                     ."    


It is true that subsection (C) itself is entitled "Standards" and includes the requirements  


that  the  application  may  be  initiated  only  by  the  property  owner  or  the  owner's  


representative and that the application must state with particularity the relief sought and  


the facts.  But the plain text of the subsection indicates that the seven separately listed  


 standards are the relevant standards by which a zoning variance application must be  


judged.  And we interpret "the same words used twice in the same [ordinance] [to] have  

                                     42   Therefore, to the extent that subsection (F)'s reference to "all the  


the same meaning." 

 standards" is ambiguous, we glean from subsection (C) that this phrase is referring to the  


 list of seven standards.  Accordingly, the Corkerys' argument that subsection (F) does  


not indicate that all seven standards must be satisfied is unavailing.  


                         As  their  final  counterargument,  the  Corkerys  claim  that  if  all  seven  


 standards  must  be  satisfied  in  order  for  a  variance  to  be  granted,  then  the  use  of  


 "substantially" in subsection (C) would be superfluous, contrary to this court's statutory  


                                              43   However, an interpretation that requires compliance with all  

 interpretation principles.                                                                                                                                   


 seven  standards would  not render  the word  "substantially" superfluous.                                                                    Under  an  


 interpretation that requires compliance with all seven standards, "substantially" still  


 carries meaning because it indicates that an application need only substantially meet -  


 as  opposed  to  completely  meet  -  each  of  the  seven  standards.                                                               Therefore  our  


             41          AMC 21.15.010(C) (emphasis added).                                        

             42          ARCTEC Servs. v. Cummings                               , 295 P.3d 916, 923 (Alaska 2013) (quoting                       

Fancyboy v. Alaska Vill. Elec. Coop., Inc.                                     , 984 P.2d 1128, 1133 (Alaska 1999)).                                    

             43          See  State  v.  Fyfe,  370  P.3d  1092,  1099  (Alaska  2016)  (stating  the  


presumption that a legislative body does not use superfluous words in statutory text and  


 "intend[s] 'every word . . . of a statute to have some purpose, force, and effect' "  


 (quoting Adamson v. Municipality of Anchorage, 333 P.3d 5, 16 (Alaska 2014))).  


                                                                             -18-                                                                       7292

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

interpretation does not render the word "substantially" superfluous but instead imbues                             

it with independent meaning distinct from that of an identical ordinance that does not                                                                                                                                                           

contain the word "substantially."                                                                 

                                       In sum, the text of subsection (C) and the ordinance as a whole indicates   

that all seven standards must be substantially met in order for the Board to grant a                                                                                                                                                                   

variance request.   

                                       2.	                Only    physical    features    of    the    applicant's    land    constitute  

                                                          "exceptional   or   extraordinary   physical   circumstances   of   the  

                                                          subject property" under variance standard one.                                                                                          

                                       The   Corkerys   next   argue   that   the   Board   misinterpreted   the   scope   of  

variance standard one.                                             Standard one requires that the variance applicant show "[t]here                                                                                                  

exist exceptional or extraordinary physical circumstances of the subject property such                                         

as, but not limited to, streams, wetlands, or slope, and such physical circumstances are                                                                                                                                                          


not applicable to other land in the same district."                                                                                                                                                                                           

                                                                                                                                                            The Corkerys contend that they  


satisfy this standard because their home was expanded to substantially exceed the lot  


coverage limitation long before they purchased it.  They reason that because the home  


is part of the "property," circumstances relating to the home, such as excessive lot  


coverage, constituteextraordinary circumstancesofthe"property." Theyfault theBoard  


for requiring them to show extraordinary circumstances relating to the land comprising  


their lot.  


                                       The Municipality counters that "[t]he plain language" of standard one  


requires that the physical circumstances "be features of the 'land' " such as "slope,  


streams, and  other  naturally  occurring  features."                                                                                                   The Municipality  argues that the  


Corkerys do not satisfy this standard because "[a] man-made structure on the property  


is not a feature of the land."  The Municipality notes our opinion in Thibodeau, where  



                                       AMC 21.15.010(C)(1)(a).  

                                                                                                                        -19-	                                                                                                                           7292  

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

we discussed what sort of circumstances warranted a variance under the Juneau variance                                                           



                        The provision at issue stated that the Juneau Board of Adjustment could  


grant a variance "[w]here hardships and practical difficulties resulting from peculiarities  


of  a  specific  property  render  it  difficult  to  carry  out  the  provisions  of  [the  zoning  

             46    We interpreted "peculiarities of a specific property" to be limited to those  


circumstances that "arise from the physical conditions of the land itself which distinguish  


it from other land in the general area."47  But, as the Municipality implicitly concedes,  


our interpretation of the Juneau provision is not binding in this case, where we are asked  


to interpret the Anchorage variance provision, whose text differs from that of the Juneau  




                         Several features of the variance provision indicate that the term "physical  


circumstances of the subject property" is limited to physical features of the land itself and  


does not include any artificial structures built on the land. First, the plain text of standard  


one weighs in favor of this interpretation.   In addition to requiring the presence of  


"physical circumstances of the subject property," standard one also requires that the  


circumstances "are not applicable to other land in the same [zoning] district."48                                                                         By  


referring to circumstances of the "land," the text suggests that such circumstances are  


limited to naturally occurring ones and do not include artificial structures on the lot.  


                         Standard one also provides specific examples of qualifying circumstances,  


and  these  examples  demonstrate  that  such  circumstances  are  limited  to  naturally  


            45           See City & Borough of Juneau v. Thibodeau                                         , 595 P.2d 626, 635 (Alaska            

 1979),  overruled  on  other  grounds  by  State  v.  Alex ,  646  P.2d  203  (Alaska   1982).   

            46          Id.  at  632.  

            47          Id.  at  632,  635  (emphasis  added).  

            48           AMC  21.15.010(C)(1)(a)  (emphasis  added).   

                                                                            -20-                                                                      7292

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

occurring features of the land itself.                                              Standard one states that qualifying circumstances       


may include, "but [are] not limited to, streams, wetlands, or slope."                                                                                                                

                                                                                                                                                            Under the noscitur  

                                                                                             50 the meaning of an ambiguous term "may be  



a sociis canon of statutory construction, 


ascertained by reference to the meaning of other words or phrases associated with it."                                                                                                                   


Applying this principle here leads us to conclude that, to the extent the term "physical  


circumstances of the subject property" is ambiguous, we can discern from the examples  


that follow it that the term refers only to naturally occurring features of the land itself.  


                               Other sections of the variance provision likewise focus on the features of  


the lot's land itself rather than any structures on the land. We must interpret standard one  


together with these other sections and in a manner that harmonizes any conflicts.52  


Subsection (A) of the variance provision requires that any variance the Board grants  


               49             Id.   

               50              Weapply this broader canon rather than the                                                       ejusdemgeneris                        canon because   

we recognize that there is some dispute whether the latter can apply where - as here -  


a general term is followed by specific examples rather than the reverse.                                                                                            Compare West   

v.  Municipality of Anchorage                                      , 174 P.3d 224, 228 (Alaska 2007) ("[The ordinance] does                                                                  

not contain a 'list of specifics' preceding the [general phrase]. Instead, only the specific  


 [term] precedes [the general term]. . . .                                             [T]his lack of a list means that                                          ejusdem generis   

does   not   apply."),   with   2A   NORMAN   J. S                                                  INGER   & S               HAMBIE   SINGER,   SUTHERLAND  

STATUTORY  CONSTRUCTION     47:17,   at   364-70   (7th   ed.   2014)   ("Ejusdem   generis  


instructs that, where general words follow specific words . . . , the general words are                                                                                                         

construed to embrace only objects similar in nature to those objects enumerated by the                                                                                                          

preceding specific words.                                    The doctrine applies equally to the opposite sequence, i.e.,                                                                     

specific words following general ones . . . ." (footnotes omitted)).                                                            

               51              Olson v. Olson, 856 P.2d 482, 484 n.2 (Alaska 1993); see also Dawson v.  


State, 264 P.3d 851, 858 (Alaska App. 2011) ("Under the rule of statutory construction  


known as noscitur a sociis (literally, 'it is known by its associates'), the meaning of a  


word in a statute can be gleaned from the words associated with it.").  


               52              SeeNelson v. Municipalityof Anchorage,267 P.3d636,642(Alaska2011).  


                                                                                               -21-                                                                                        7292

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

must "be the minimum variance that will make possible a reasonable use of the                                                           land  

equivalent to, but not exceeding, the use of similar                               land  permitted generally in the same               

                           53  And standard seven requires that, in order to grant a variance, the  

zoning district."                                                                                                                         

Board must find that the variance "is the minimum variance that will make possible a  


reasonable use of the land."54  


                      In sum, the plain text of standard one along with other sections of the  


variance provision indicate that the required "exceptional or extraordinary physical  


circumstances of the subject property" include only physical features of the land itself.  


Thus we conclude that standard one was intended to encompass the same scope we  


described when interpreting the Juneau variance provision: "Peculiarities of the specific  


property  sufficient  to  warrant  a  grant  of  a  variance  must  arise  from  the  physical  



conditions of the land itself which distinguish it from other land in the general area."                                                         


The  excessive  lot  coverage  of  the  Corkerys'  home  does  not  constitute  such  a  



circumstance and therefore does not satisfy standard one.                                           


           53         AMC  21.15.010(A)  (emphases  added).   

           54         AMC  21.15.010(C)(1)(g)  (emphasis  added).   

           55         City  & Borough  of  Juneau  v.  Thibodeau,  595  P.2d  626,  635  (Alaska  1979),  

overruled  on  other  grounds  by  State  v.  Alex ,  646  P.2d  203  (Alaska   1982).   

           56         Because we conclude that the Corkerys' home does not satisfy standard  


one, we do not consider their argument with regard to standard two because this standard  


is premised on standard onebeing satisfied. See AMC 21.15.010(C)(1)(b) (requiring that  


"[b]ecause  of  these physical  circumstances  [described  in  standard  one],  the  strict  


application of this code would create an exceptional or undue hardship upon the property  


owner, and would deprive the applicant of rights commonly enjoyed by other properties  


in the same [zoning] district under the terms of the zoning ordinance" (emphasis added)).  


By virtue of failing to satisfy standard one, the Corkerys also fail to satisfy standard two.  


                                                                    -22-                                                              7292

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


                  We AFFIRM the superior court's decision affirming the Board's denial of  


the Corkerys' variance request.  


                                                         -23-                                                7292

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