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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rosauer v. Manos (3/8/2019) sp-7343

Rosauer v. Manos (3/8/2019) sp-7343

          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@akcourts.us.  



                    THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



CHRIS  ROSAUER  and  JEANNE                                    )  

ROSAUER,                                                       )  Supreme  Court  No.  S-16678  

                                                               )  

                                                                                                                      

                             Appellants,                       )  Superior Court No. 3AN-16-06153 CI  

                                                               )  

          v.                                                   )                    

                                                                 O P I N I O N  

                                                               )  

                                          

THOMAS MANOS; JODY LIDDICOAT; )                                                                   

                                                                 No. 7343 - March 8, 2019  

                                                         

and GREATLAND TREE SERVICE,                                    )  

          

LLC,                                                           )  

                                                               )
  

                             Appellees.                        )
  

                                                               )
  



                                                                                                            

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

                                                                                        

                   Judicial District, Anchorage, Erin B. Marston, Judge.  



                                                                                                   

                   Appearances:  John W. Colver, Colver & McMillan, LLC,  

                                                                                                        

                   Anchorage, for Appellants. Timothy J. Lamb and Whitney L.  

                                                                                           

                   Traeger,  Delaney  Wiles,  Inc.,  Anchorage,  for  Appellees  

                                                                                               

                   Thomas Manos  and Jody Liddicoat.   Kenneth M.  Gutsch,  

                                                                                                     

                   Richmond & Quinn, Anchorage, for Appellee Greatland Tree  

                                 

                   Service, LLC.  



                                                                                                

                   Before: Bolger, Chief Justice, Winfree, Stowers, and Carney,  

                                                                   

                   Justices.  [Maassen, Justice, not participating.]  



                                      

                   WINFREE, Justice.  



I.        INTRODUCTION  



                                                                                                                          

                   Homeowners had trees removed from a municipal right-of-way across the  



                                                                                                               

road from their home, only obtaining a required permit several months later. Neighbors,  


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whose property abutted the right-of-way and whose house had been behind the removed                                                                                    



                                                                                                                                                          1  

trees, sued the homeowners and the tree-removal company for damages.                                                                                                    

                                                                                                                                                              The superior  



                                                                                                                                       

court granted summary judgment to the homeowners and the tree-removal company,  



                                                                                                                                                                          

concluding that themunicipality's subsequent permit approving thetreeremovalnegated  



                                                                                                                                                           

the neighbors' claim.  The neighbors appeal.  Because we agree that the municipality's  



                                                                                                                                                                                   

subsequent permit effectively conferred lawful authority to cut the trees, we affirm the  



                                    

superior court's decision.  



                                               

II.           FACTS AND PROCEEDINGS  



                                                                                                                                

                             The material facts of this case are undisputed.  Chris and Jeanne Rosauer  



                                                                                                                                                                               

own a home and underlying property in Girdwood across the municipal roadway from  



                                                                                                                                                                   

a  home  and  underlying  property  owned  by  Thomas  Manos  and  Jody  Liddicoat  



                                                                                                                                                                                   

(collectively Manos). The Municipality of Anchorage owns a right-of-way between the  



                                                                                                        

Rosauers' property and the municipal roadway.  



                                                                                                                                                                        

                             In  August 2015 Manos hired Greatland Tree Service, LLC to remove  



                                                                                                                                                                    

several cottonwood trees within the municipal right-of-way in front of the Rosauers'  



                                                                                                                                                                           

property.   The Anchorage Municipal Code  requires private entities to obtain a permit  

                                                                                                                                            2   Neither Manos nor  

                                                                                                                                                                                  

for the "use" of municipal rights-of-way, including tree removal. 



              1              Alaska   Statute   09.45.730,   Alaska's   timber-trespass   statute,   allows   a  



landowner to recover treble damages from a "person who without lawful authority cuts                                                                                             

down . . . a tree . . . on . . . the land of another person or on the street or highway in front                                                                               

of a person's house."                           The neighbors asserted that landowners covered by the statute                                                              

include   the   owners   of   houses   adjoining   streets   or   highways   from   which   trees   are  

removed, even if they do not own the land underlying the trees.                                                                           



              2              AMC  24.30.020  (2018)  (requiring  permit  to  "use  any  public  place");  

                                                                                                                                                                        

AMC 24.30.010 (defining "public place" to include rights-of-way and "use" to include  

                                                                                                                                                                          

tree removal).  

          



                                                                                          -2-                                                                                 7343
  


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

Greatland obtained a permit before the tree removal, but Greatland later obtained a                                                                                            



permit in October.                      



                           In April 2016 the Rosauers sued Manos and Greatland, seeking damages                

                                                                                                             3 which provides, in relevant part:  

under Alaska's timber-trespass statute, AS 09.45.730,                                                                                                                              



"A person who without lawful authority cuts down, girdles, or otherwise injures or  

                                                                                                                                                                             



removes a tree, timber, or a shrub on the land of another person or on the street or  

                                                                                                                                                                             



highway in front of a person's house . . . is liable to the owner of that land."  The next  

                                                                                                                                                              



month Chris Rosauer asked the Municipality to invalidate the permit issued to Greatland.  

                                                                                                                                                                                   



The Municipality denied Rosauer's request, explaining in a permit-inspection report that  

                                                                                                                                                                          



the trees had been located on a "right of way and not on private property" and that their  

                                                                                                                                                                        



removal benefitted the Municipality by "improv[ing] maintenance, snow removal, and  

                                                                                                                                                                          



access to [a] drainage ditch."   The report concluded that the Municipality "will not  

                                                                                                                                                                          



permit the replacement of the trees in the same location."   Rosauer did not further  

                                                                                                                                                                   



administratively challenge the permit.  

                                                                                



                           All  parties  sought  summary  judgment  on  the  Rosauers'  claims.                                                                          The  

                                                                                                                                                                        



motions raised two issues under the statute:  whether the retroactive permit negated the  

                                                                                                                                                                           



requirement that removal be "without lawful authority" and whether the Rosauers could  

                                                                                                                                                                      



bring a claim under the statute even though they did not own the land from which the  

                                                                                                                                                             



trees were removed.  

                       



                           Manos, joined by Greatland, argued that, because the statute does not  

                                                                                                                                                                          



specify when authority must be obtained, the retroactive permit constituted "lawful  

                                                                                                                                                                  



authority."  The Rosauers countered that, although the statute is silent on timing, the  

                                                                                                                                                                           



Anchorage Municipal Code requires that a permit be obtained before removing trees  

                                                                                                                                                                        



              3            Alaska Statute 09.45.730 is titled "Trespass by cutting or injuring trees or                                                                      



shrubs."    We referred to AS 09.45.730 in a past case as a "timber trespass" statute.                                                                                             

 Wiersum v. Harder                      , 316 P.3d 557, 559 (Alaska 2013).                         



                                                                                      -3-                                                                              7343
  


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

                                       4  

from a right-of-way.                       Manos responded that the code allows the Municipality to waive                                                   



                                                                                                                    5  

"any breach of any of the terms or conditions of a permit"                                                                                                     

                                                                                                                       and that such terms and  



                                                                                                                                                                        

conditions  include  the  requirement  for  obtaining  a  permit  before  tree  removal.  



                                                                                                                                   

According to Manos, the retroactive permit acted as a waiver of the prior-authorization  



                          

requirement.  



                                                                                                                                                            

                          Manos also argued that the Rosauers lacked standing to bring a claimunder  



                                                                                                                                                                        

AS 09.45.730 because they did not own the land from which the trees were removed.  



                                                                                                                                                                   

Manos interpreted the condition "liable to the owner of that land" to grant a cause of  



                                                                                                                                                    

action  only  to  the  owners  of  land  from  which  trees  are  removed.                                                                 The  Rosauers  



                                                                                                                                                                   

responded that Manos seemed to ignore the second condition - "or on the street or  



                                                                                                                                                               

highway in front of a person's house" - and that the term "owner of that land" also  



                                                                                                                                                                 

applies to homeowners whose property abuts a street or highway from which trees are  



                                                                                            

removed, thus granting them a cause of action.  



                                                                                                                                                                        

                          The superior court granted summary judgment to Manos and Greatland.  



                                                                                                                                                            

The court stated that to "prevail under AS 09.45.730 Plaintiffs are required to show  



                                                                                                                                                                        

Defendants cut down a tree on the street in front of their house without lawful authority."  



                                                                                                                                                                 

The court concluded that the retroactive permit conferred lawful authority, negating the  



                                                                                                                                                              

Rosauers' claim:  "Defendants did not have lawful authority to cut the trees at the time  



                                                                                                                                                            

they were cut, but gained lawful authority before this suit was filed, nullifying any cause  



                                                                     

of action Plaintiffs may have had."  



                                         

             The Rosauers appeal.  



             4            See  AMC 24.30.020(A) ("It is unlawful for anyone to use any public place                                                                     



. . . without first having applied for and obtained a permit . . . .").                                               



             5            AMC 24.30.280.  

                                       



                                                                                 -4-                                                                         7343
  


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

III.          STANDARD OF REVIEW                     



                            "We review a grant of summary judgment de novo, 'affirming if the record                                                                 



presents no genuine issue of material fact and if the movant is entitled to judgment as a                                                                                      



                                  6  

matter of law.' "                    "In conducting de novo review, we will 'adopt the rule of law that is                                                                    



                                                                                                                           7 

most persuasive in light of precedent, reason, and policy.' "   "Statutory interpretation  



                                                                                                           8  

                                                                                                                                                                

is also a question of law, which we review de novo."                                                           "Ordinary principles of statutory  



                                                                                               9  

                                                                                                                                                              

interpretation apply" to municipal ordinances.                                                      "We apply our independent judgment  



                                                                                                                                                                             

to the interpretation of a statute that does not 'implicate an agency's special expertise or  



                                                                                    10  

                                                                                                                                                                

determination of fundamental policies.' "                                                "In questions of law involving the agency's  



                                                                                                                                                               

expertise, a rational basis standard will be applied and we will defer to the agency's  



                                                                                      11  

                                                             

determination so long as it is reasonable." 



IV.           DISCUSSION  



                                                                                                                                                                     

                            We begin with the question whether the Municipality's retroactive permit  



                                                                                                                                                                  

constituted lawful authority negating the Rosauers' claim under AS 09.45.730, because  



                                                                                                                                                                   

the answer decides this case's outcome.   The Rosauers seize on the superior court's  



              6            Kelly v. Municipality of Anchorage                                         , 270 P.3d 801, 803 (Alaska 2012)                              



(quoting  Beegan v. State, Dep't of Transp. &Pub. Facilities                                                             , 195 P.3d 134, 138 (Alaska              

2008)).  



              7             State, Div. of Elections v. Green Party of Alaska, 118 P.3d 1054, 1059  

                                                                                                                                                                       

(Alaska 2005) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).  

                                                                                                                                                



              8            Madonna v. Tamarack Air, Ltd., 298 P.3d 875, 878 (Alaska 2013).  

                                                                                                                                                        



              9             S. Anchorage Concerned Coal. Inc. v. Municipality of Anchorage Bd. of  

                                                                                                                                                                              

Adjustment , 172 P.3d 768, 771 (Alaska 2007).  

                                                                                   



              10           Municipality of Anchorage v. Suzuki, 41 P.3d 147, 150 (Alaska 2002)  

                                                                                                                                                                     

(quoting Cissna v. Stout, 931 P.2d 363, 366 (Alaska 1996)).  

                                                                                                             



              11           Alyeska Pipeline Serv. Co. v. DeShong , 77 P.3d 1227, 1231 (Alaska 2003).  

                                                                                                                                                                     



                                                                                      -5-                                                                              7343
  


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

 statement that a valid claim "accrued" on the date the trees were removed, and they                                                                                                                         



 suggest that the court prematurely foreclosed adjudication of a valid claimby concluding                                                                                                    



 that   the   subsequent   permit  conferred   lawful   authority.     But   the   Rosauers   plainly  



 misconstrue   the   superior   court's   ruling,   that   the   permit   invalidated   their   claim   by  



 depriving it of the element of unlawfulness.                                                                   



                                  Manos and Greatland are correct that AS 09.45.730 does not specify when                                                                                                  



 lawful authority must be obtained, and the Rosauers offer no evidence of contrary                                                                                                                



 legislative   intent;   indeed,   they  conceded   this   point   in   their   briefing   on   summary  



judgment.   The Rosauers instead rely on the Anchorage Municipal Code provision                                                                                                                

                                                                                                                                                                                                   12     They  

 requiring a permit to be obtained prior to removing trees from a right-of-way.                                                                                                                           



 assert that it was "outside of [the municipal agent's] authority" to issue a retroactive  

                                                                                                                                                                                           



permit.  

                    



                                  We have recognized "the general principle that municipalities may broadly  

                                                                                                                                                                                                     

                                                                                                                                    13      Delegation promotes efficient  

 delegate powers to municipal agencies or officers."                                                                                                                                              

                                                                                                            



 government: As we haveexplained, "[w]ithout the power to delegate duty and discretion  

                                                                                                                                                                                                

 the affairs of [a municipality] could not be carried on."14                                                                                    Whether an agency's actions  

                                                                                                                                                                                                      



 accord with a legislative delegation depends on agency expertise and reasonableness:  

                                                                                                                                                                                                                          



 "In questions of law involving the agency's expertise, a rational basis standard will be  

                                                                                                                                                                                                                  



                 12               See supra                notes 2 and 4.                 



                 13               Stevens v. State, Alcoholic Beverage Control Bd.                                                                            , 257 P.3d 1154, 1157                        



 (Alaska 2011).   



                 14              Municipality of Anchorage v. Anchorage Police Dep't Emp. Ass'n, 839  

                                                                                                                                                                                                              

 P.2d 1080, 1084 (Alaska 1992) (quoting City of Anchorage v. Richardson Vista Corp.,  

                                                                                                                                                                                                        

 242 F.2d 276, 285 (9th Cir. 1957) (second alteration added)).  

                                                                                                                                     



                                                                                                         -6-                                                                                               7343
  


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

                                                                                                                                       15  

applied and we will defer to the agency's determination so long as it is reasonable."                                                       



                                                                                                                                   

The Anchorage Municipal Code delegates significant authority  and discretion  over  



                                                                                        

public-use permits to the Department of Development Services:  



                                                                                                             

                     The director of development services may attach to and make  

                                                                                                   

                     a part of the permit any special provisions and stipulations  

                                                                                                               

                     that he deems necessary to protect the public place . . . or may  

                                                                                                                

                     specify methods,sequences ofconstruction andmaterials and  

                                                                                                              

                     other pertinent items, or may require that the applicant enter  

                                                                                                          

                     into an agreement with the municipality which shall contain  

                                                                                                                 [16]  

                                                                                                 

                     such provisions and stipulations that he deems necessary. 



This provision broadly entrusts decisions regarding the safe and efficient use of public  

                                                                                                                                 



spaces  to  the  Department.                   Authority  to  grant  retroactive  permits,  with  terms  and  

                                                                                                                                    



conditions necessary to protect the public interest, is consistent with such a policy.  

                                                                                                                                            



Moreover,  as  the  provision  granting  the  Department  permitting  authority  shows,  

                                                                                                                               



permitting decisions involve agency expertise on public safety issues.  This is clearly  

                                                                                                                                            



illustrated by the permit at issue in this case.  The subsequent permit-inspection report  

                                                                                                    



- created in response to Chris Rosauer's request that the permit be invalidated - noted  

                                                                                                                                  



that the tree removal "improve[d] maintenance, snow removal, and access to [a]drainage  

                                                                                                                             



ditch." Consequently, at least based on the minimal record before us, the Department's  

                                                                                                                     



decision to grant a retroactive permit in this case should be reviewed for reasonableness.  

                                                                                                                                           



We  cannot  say  that  it  is  unreasonable  to  interpret  the  municipal  code  provision  

                                                                                                                          



authorizing  waiver  of  permit  terms  and  conditions  to  include  waiver  of  the  prior- 

                                                                                                                                 



authorization requirement. We therefore concludethat theretroactivepermit was validly  

                                                                                                                                



granted.  



           15        Alyeska  Pipeline  Serv.  Co.,  77  P.3d  at   1231.  



           16        AMC  24.30.120(A).  



                                                                   -7-                                                            7343  


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

                                                                               The retroactive permit conferred lawful authority for the tree removal.                                                                                                                                                                                                                                                                                                                                                                          



Because the Municipality's retroactive permit deprived the Rosauers of the requirement                                                                                                                                                                                                                                                                                                                                                                



under AS 09.45.730 that removal be "without lawful authority," we do not reach the                                                                                                                                                                                                                                                                                                                                                                                                                        



question of standing under the statute.                                                                                                                                                



V.                                      CONCLUSION  



                                                                              We AFFIRM the superior court's decision.                                                                                                                                                                  



                                                                                                                                                                                                                                                                    -8-                                                                                                                                                                                                                        7343
  

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