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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. South Anchorage Concerned Coalition, Inc. v. Municipality of Anchorage Board of Adjustments (12/14/2007) sp-6209
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| SOUTH ANCHORAGE | ) |
| CONCERNED COALITION, INC., | ) Supreme Court No. S- 12286 |
| ) | |
| Appellant, | ) Superior Court No. 3AN-04-11770 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| MUNICIPALITY OF ANCHORAGE | ) No. 6209 - December 14, 2007 |
| BOARD OF ADJUSTMENT, | ) |
| DAVID D. HULTQUIST and | ) |
| LESA L. HULTQUIST, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, John Suddock,
Judge.
Appearances: Lawrence V. Albert, Anchorage,
for Appellant. Donald W. McClintock and
Matthew T. Findley, Ashburn & Mason, P.C.,
Anchorage, for Appellees Hultquist.
Before: Fabe, Chief Justice, Eastaugh,
Bryner, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
PER CURIAM.
I. INTRODUCTION
This appeal arises from opposition to a proposed
residential development on several hundred acres in south
Anchorage. Appellant South Anchorage Concerned Coalition
appealed the Platting Boards preliminary approval of a plat for
the development to the Municipality of Anchorage Board of
Adjustment, but its appeal was automatically denied because it
did not file the hearing transcript within the thirty-day period
set forth in the Anchorage Municipal Code. Both the municipal
clerk and the Board of Adjustment denied that they had authority
to waive the deadline and accept the late transcript. We read
the ordinance at issue to be directory, not mandatory, and hold
that the Board of Adjustment therefore has discretion to waive
the deadline and to allow the appeal to proceed. We therefore
remand.
II. FACTS AND PROCEEDINGS
This appeal is one of several proceedings related to
the Kincaid Estates development on former gravel pits in south
Anchorage.1 The procedural history of the case is complex and
largely irrelevant to the matter of this appeal. In short, the
Hultquists, appellees here, first applied for approval of the
plat at issue in this appeal in November 2001. The Platting
Board ultimately approved the application in July 2004. The South
Anchorage Concerned Coalition (the Coalition), on behalf of those
opposed to the development, appealed the Platting Boards decision
to the Board of Adjustment.
The Coalition filed notice of appeal of the Platting
Boards decision to the Board of Adjustment on August 5, 2004.
Anchorage Municipal Code (AMC) 21.30.050(B) provides that within
thirty days of filing notice of an appeal, an appellant must file
with the municipal clerk a transcript of the hearing that is the
subject of the appeal; if the appellant fails to do so, the
appeal shall be automatically denied.2 The Coalition had
prepared a transcript but, due to a calendaring error, failed to
file it. Shortly after the thirty-day period for filing the
transcript expired, the clerk notified the Coalition that its
appeal had been denied under subsection .050(B).
The Coalition filed a motion to set aside the clerks
dismissal of its appeal, along with the transcript of the
Platting Boards hearing, on September 20, 2004, thirteen days
after the September 7 deadline. The Hultquists opposed the
motion.
The Board of Adjustment held a hearing at which it
denied the Coalitions motion and affirmed the clerks dismissal of
the appeal. The Board of Adjustment did not issue a written
decision, but in discussing the matter, members of the Board of
Adjustment expressed their belief that they were only authorized
to hear an appeal that had been properly presented to them and
were powerless to second guess the municipal clerks decision to
dismiss an appeal for failure to meet the deadline.
The Coalition interpreted the Board of Adjustments
decision to mean that the code authorized only the municipal
clerk to relax the deadline; accordingly, the Coalition requested
that the clerk as the administrator issuing the letter of
dismissal set aside the dismissal. The clerk responded that the
Coalitions analysis was incorrect. Implying that she, too,
lacked authority to waive the deadline, she stated only that the
Board of Adjustment had authority . . . to exercise independent
judgment on legal issues such as this and that the Board of
Adjustment had found no basis to reverse the clerks decision to
dismiss the appeal.
The Coalition then appealed to the superior court,
arguing that the Board of Adjustment was authorized to set aside
appeals dismissed under AMC 21.30.050(B). The superior court
disagreed; it held that the ordinance mandated automatic
dismissal and that it was just impossible to read it any other
way. The court acknowledged that allowing the appeal to proceed
would not have prejudiced the Hultquists: if the Board had had
the authority and had failed to lighten up on these facts, . . .
it would have been . . . an abuse of discretion. But the court
distinguished municipal ordinances from court rules and other
procedural statutes and noted that neither it nor the Board of
Adjustment had authority to waive a deadline established by an
independent ordinance-creating body.
The Coalition petitioned for rehearing on the ground
that the court misconceived an issue of law by failing to
consider the Anchorage Municipal Assemblys past practice of
routinely allowing appeals to proceed despite late-filed
transcripts.3 In support of its motion, the Coalition submitted
evidence of five instances when the Municipal Assembly before
the formation of the independent Board of Adjustment relaxed the
filing deadline. Reasoning that the current Board of Adjustment
had set forth a principled justification for departing from any
past policy of the Assembly to be more lenient with the
transcript filing deadline, the court denied the Coalitions
petition for rehearing. It did grant the Coalition permission to
supplement the record with minutes from past meetings in which
the Assembly had waived the transcript deadline.
The Coalition appeals the decision of the Board of
Adjustment refusing to set aside dismissal of its appeal.
III. DISCUSSION
A. Standard of Review
When the superior court acts as an intermediate court
of appeals in an administrative matter, we independently review
the merits of the agencys decision.4 At issue in this appeal is
whether the Board of Adjustment correctly interpreted and applied
a procedural ordinance. Because this does not implicate special
agency expertise or the determination of fundamental policies
within the scope of the agencys statutory function, we will
substitute our independent judgment for that of the agency.5
Ordinary principles of statutory interpretation apply
to our consideration of the ordinance at issue here.6 When
interpreting a statute or ordinance, our goal is to give effect
to the intent of the law-making body with due regard for the
meaning that the language in the provision conveys to others.7
We adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.8
B. Discretion To Waive the Transcript Filing Deadline
The Coalition argues that the Assemblys prior policy of
lenity should govern the Board of Adjustments current application
of the transcript filing deadline. The Hultquists counter that
the Assemblys past practice was a mistake of law, not an exercise
of discretion, and that the Board of Adjustment was correct in
strictly applying the ordinance.
Whether a party must strictly comply with a procedural
rule, regulation, or statute turns on whether the language of the
law is mandatory or directory.9 If a statute is mandatory,
strict compliance is required; if it is directory, substantial
compliance is acceptable absent significant prejudice to the
other party.10 A statute is considered directory if (1) its
wording is affirmative rather than prohibitive; (2) the
legislative intent was to create guidelines for the orderly
conduct of public business; and (3) serious, practical
consequences would result if it were considered mandatory.11
We conclude that the language of the ordinance at issue
satisfies these criteria and hold that it is, therefore,
directory. Anchorage Municipal Code 21.30.050(B) reads:
The appellant shall arrange for the
preparation of the transcript of the board
hearing by a court reporter or the current
board and commission recording secretary and
shall pay the cost of such preparation. The
appellant shall file the transcript with the
municipal clerk. If the appellant fails to
file the transcript within 30 days of the
filing of the notice of appeal, the appeal
shall be automatically denied.
First, the ordinances language is in no respect
prohibitive; the ordinance assigns responsibility for the
preparation and filing of the transcript, but never speaks to
what the appellant, the municipal clerk, or the Board of
Adjustment can or should not do.
As to the second prong of the test, the language of the
ordinance is more equivocal. The last clause of the provision,
the appeal shall be automatically denied, arguably imposes a
penalty on the appellant for failing to meet the filing deadline.
Alternatively, this clause can be interpreted to be a ministerial
directive guiding the municipal clerks management of the case.
Seen this way, the ordinance falls more squarely into that
category of provisions intended to be guidelines for the orderly
conduct of public business.12 We favor this construction for
several reasons.
For one, the plain language of AMC 21.30.050 as a whole
speaks directly to the duties of the municipal clerk rather than
to the broader requirements for establishing the Board of
Adjustments ultimate jurisdiction over the case.13 In other
words, the task at issue here namely the filing of a transcript
is set apart from the three steps an appellant must take to
perfect an appeal to the Board of Adjustment: (1) file a notice
of appeal; (2) pay an appeal fee; and (3) post a cost bond within
twenty days of the Platting Boards final decision.14 Once an
appellant has accomplished these steps, jurisdiction over the
appeal is conferred on the Board of Adjustment. The timely
filing of a transcript has no bearing on this jurisdictional
process; failure to meet the transcript filing deadline is simply
a failure to follow guidelines for the orderly conduct of public
business15 that triggers another such guideline: automatic
dismissal. A guideline of this kind should not irreversibly
jeopardize the Board of Adjustments jurisdiction to control the
course of the appeal.
The language of the provision does use the word shall,
which, in its ordinary use, is an affirmative command that is
often taken to be mandatory.16 But we have held that in some
contexts, namely in the absence of injury to the defendant and in
the absence of a penalty for failure to comply with the statute,
shall denotes simple futurity rather than a command.17 In State
v. Schnell, for example, we applied that rule to hold that a
statute providing that [w]ithin 30 days after termination of the
hearing, . . . the director shall make an order on hearing was
directive, not mandatory, because the statute imposes no penalty
or consequences for failing to rule timely.18 We further noted
that to read the statute as imposing an absolute bar on state
action after the thirty-day period expired would lead to absurd
and undesirable results.19
In another case, we relied on Schnell to hold that a
rule stating that a hearing committee will promptly schedule a
hearing to take place within 30 days of the filing of the
petition was directive.20 In addition to the factors discussed in
Schnell, we emphasized that the primary purpose of the time
limits is merely to provide a broad set of guidelines for how the
Hearing Committee . . . should proceed.21 We likewise noted that
serious, practical consequences were at stake in that a strict
time limit in this context would fail to take into account the
many common exigencies and contingencies of litigation and would
clearly inhibit the discretion of the Hearing Committee to make
adjustments for these or other similar events.22
As in these cases, the primary purpose of the time
limit at issue here is to set guidelines directing how the clerk
should proceed when a timely transcript has not been filed. The
deadline for filing briefs in platting board appeals starts with
service of the record upon the parties.23 A late-filed transcript
which is part of that record merely delays the start of this
thirty-day period; this does not necessarily prejudice an
appellee in the presentation of a case, and the Hultquists have
not advanced any specific claim of prejudice here. In our view,
the primary purpose of the directive is to guide the clerks
orderly management of the case, not to impose a litigation-ending
sanction on the appellant.
The third prong of the test is also met here: serious
practical consequences would result if the deadline were
considered mandatory. To dismiss an appeal for failure to timely
file a transcript, without prior notice and an opportunity to be
heard, would present procedural due process concerns.24 Apart
from amounting to an automatic litigation-ending sanction,25 an
unalterable consequence of this kind would inhibit the discretion
of the Board of Adjustment to entertain potentially meritorious
appeals.26 As we have observed before, [i]t is always within the
discretion of a court or an administrative agency to relax or
modify its procedural rules adopted for the orderly transaction
of business before it when in a given case the ends of justice
require it.27 Accordingly, we hold that the Board of Adjustment
has the discretion to relax the filing deadline set forth in AMC
21.30.050(B) and to allow the appeal to proceed.28
IV. CONCLUSION
For these reasons, we REMAND the case to the Board of
Adjustment to consider whether the factual circumstances of this
case warrant relaxing the deadline and allowing the Coalitions
appeal to proceed.29
_______________________________
1 See S. Anchorage Concerned Coal. v. Municipality of
Anchorage, ___ P.3d ____, Op. No. 6210 (Alaska, December 14,
2007).
2 AMC 21.30.050(B) (1996).
3 We note that, after the Coalition filed its appeal, the
Anchorage Municipal Assembly amended the Board of Adjustments
enabling statute, converting it into an independent
administrative entity composed of three members with staggered
terms. Previously, the Assembly itself had acted as the Board of
Adjustment for appeals from decisions of the Platting Board.
4 Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002).
5 Alaska Pub. Employees Assn v. State, 831 P.2d 1245,
1247 (Alaska 1992) (citing Tesoro Alaska Petroleum Co. v. Kenai
Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)).
6 See, e.g., City of Skagway v. Robertson, 143 P.3d 965,
968 (Alaska 2006); Marlow v. Municipality of Anchorage, 889 P.2d
599, 602 (Alaska 1995).
7 Marlow, 889 P.2d at 602 (internal quotation marks and
citations omitted).
8 Robertson, 143 P.3d at 968 (citation omitted).
9 See In re Reinstatement of Wiederholt, 24 P.3d 1219,
1233 (Alaska 2001); see also State, Dept of Commerce & Econ.
Dev., Div. of Ins. v. Schnell, 8 P.3d 351, 357 (Alaska 2000).
10 In re Wiederholt, 24 P.3d at 1233 (citation omitted).
11 Id. (quoting City of Yakutat v. Ryman, 654 P.2d 785,
789-91 (Alaska 1982)).
12 In re Wiederholt, 24 P.3d at 1233.
13 See AMC 21.30.050(A) (Upon timely perfection of an
appeal to the board of adjustment, the municipal clerk shall
prepare an appeal record. The record shall contain . . . .).
14 AMC 21.30.030(A)(1).
15 In re Wiederholt, 24 P.3d at 1233.
16 State, Dept of Commerce & Econ. Dev., Div. of Ins. v.
Schnell, 8 P.3d 351, 357 (Alaska 2000) (citing Commr of Ins. v.
Stryker, 463 S.E.2d 163, 166 (Ga. App. 1995)).
17 Id. (citing Stryker, 463 S.E.2d at 166).
18 Id. (quoting AS 21.06.220(a) (alterations in
original)).
19 Id. In Schnell, the undesirable result was that a
license holder would be insulated from justifiable state action
against his or her license. Id.
20 In re Wiederholt, 24 P.3d at 1232-33.
21 Id. at 1233.
22 Id.
23 AMC 21.30.060.
24 See Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
25 See Arbelovsky v. Ebasco Servs., Inc., 922 P.2d 225,
227 (Alaska 1996).
26 In re Wiederholt, 24 P.3d at 1233.
27 Forquer v. State, Commercial Fisheries Entry Commn, 677
P.2d 1236, 1243 (Alaska 1984) (citation omitted).
28 Notably, past practices of the Assembly which authored
the ordinance indicate that it, too, historically understood the
provision to be directory, not mandatory. The Coalition has
provided evidence of at least four separate occasions where the
Assembly relaxed the transcript filing deadline.
29 Our disposition of this issue makes it unnecessary to
address other issues raised by the Coalition.
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