L Street Investments v. Municipality of Anchorage ( 2013 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
L STREET INVESTMENTS, )
) Supreme Court No. S-14466
Appellant, )
) Superior Court No. 3AN-10-12355 CI
v. )
) OPINION
MUNICIPALITY OF ANCHORAG E, )
and ANCHORAGE DOWNTOWN ) No. 6816 – August 23, 2013
PARTNERSHIP, Ltd., )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, John Suddock, Judge.
Appearances: Christopher J. Slottee, Atkinson, Conway &
Gagnon, Inc., Anchorage, for Appellant. Sean Halloran,
Littler Mendelson, P.C., Anchorage, for Appellee Anchorage
Downtown Partnership, Ltd. Deitra Ennis, Assistant
Municipal Attorney, and Dennis Wheeler, Municipal
Attorney, Anchorage, for Appellee Municipality of
Anchorage.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices.
STOWERS, Justice.
I. INTRODUCTION
The former Anchorage Municipal Code provided for the creation of special
assessment districts for public capital improvements. On June 11, 1996, the Anchorage
Municipal Assembly (Assembly) enacted Anchorage Ordinance 96-77(S-I) to broaden
“special assessment districts” to include the provision of services and to authorize
business improvement districts. In 1997 the Assembly passed Anchorage Ordinance
97-51, which created the Downtown Improvement District (District) for a period of three
years. When passing this ordinance, the Assembly amended the boundaries of the
proposed District to exclude some properties on K and L Streets. The building at 420
L Street, the property owned by appellant L Street Investments, was in the original
proposal but subsequently carved out by the Assembly. In 2000 the Assembly extended
the life of the District for ten years. Beginning in 2009, the Anchorage Downtown
Partnership canvassed businesses hoping to extend the life of the District again and
expand the District to include businesses between I and L Street. After the majority of
business owners in the proposed District approved the extension and expansion, the
Assembly extended the life of the District and expanded it to include businesses between
I and L Streets, including the building at 420 L Street.
L Street Investments filed a complaint arguing: (1) Section 9.02(a) of the
Municipality of Anchorage’s Charter does not authorize the Municipality to finance
services within the District by an assessment — rather, the Municipality can finance
services only by a tax levy; and (2) the District is a “service area,” and AS 29.35.450(c)
prohibits the expansion of a service area unless a majority of voters in the area to be
added vote in favor of expanding the service area. The Anchorage Downtown
Partnership intervened, and all parties filed cross-motions for summary judgment. The
superior court granted summary judgment to the Municipality and the Anchorage
Downtown Partnership. We affirm.
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II. FACTS AND PROCEEDINGS
In late 1994 and early 1995, a group of Anchorage business and civic
leaders formed the Downtown Action Committee to develop a vision to revitalize
downtown Anchorage. In April 1995 the Committee decided to develop a “business
improvement district” to provide services that enhanced the beauty, safety, convenience,
and vibrancy of downtown Anchorage. In January 1996 the Committee incorporated
under the name Anchorage Downtown Partnership, Ltd. (Partnership).
At the time, Title 19 of the Anchorage Municipal Code provided for the
creation of special assessment districts for capital improvements; it did not provide for
the creation of districts for public services such as a business improvement district. On
June 11, 1996, at the urging of the Partnership, the Assembly enacted Anchorage
Ordinance 96-77(S-I) to broaden “special assessment districts” to include the provision
of public services, thereby authorizing business improvement districts.1 The Anchorage
Municipal Code now states:
A special assessment district, including a business
improvement district, may be initiated for public capital
improvements or for public services as specifically defined
by the ordinance creating the assessment district, as provided
in this section.[2]
1
Anchorage Code Ordinance (ACO) 96-77(S-I) (1996).
2
Anchorage Municipal Code (AMC) 19.10.020(A) (1996). Subsection
(A)(2) provides:
Assessment districts for public services may be initiated only
for public services specified in this subsection . . . .
a. Maintenance, repair and upkeep of any public capital
improvement created by an assessment district;
(continued...)
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A special assessment district can enhance but not replace city services already provided:
Assessment districts for services shall provide an enhanced
or supplemental public service or new public service not
provided by the municipality generally. The establishment of
an assessment district for services shall not operate
unilaterally or by implication as a substitute for or to reduce
2
(...continued)
b. Maintenance, including snow removal/disposal and
dust suppression, cleaning and beautification and
decoration of public places, areas, facilities and
rights-of-way such as:
(1) Streets, roads, alleys, parkways, street
lighting, curbs and gutters, driveways,
curb cuts and parking areas and
facilities;
(2) Sidewalks, trails and other pedestrian
ways and facilities;
(3) Parks and recreational areas and
facilities;
c. Visitor and tourism public services;
d. Security services not including law enforcement
services;
e. Promotion of public events within the assessment
district and promotion of the assessment district itself
as an area of enhanced public services.
f. Other public services closely similar to those listed in
subsections A .2.a. through A.2.e. of this subsection
designed to promote the vitality, stability and
improvement of the assessment district as a whole.
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or eliminate the nature or extent of services provided by other
means.[3]
A special assessment district can be initiated either by a petition of property owners in
that district or by the Assembly, but it “may be created or extended only with the
approval of the property owners who would bear more than 50 percent of the estimated
cost of the improvement or service.”4 The Assembly then holds a public hearing “upon
the necessity for the proposed improvement or service.”5 After the public hearing, the
Assembly decides whether to proceed with the proposal:
[T]he assembly shall adopt an ordinance determining either
to proceed or not to proceed with the proposed improvement
or service. The ordinance to proceed shall find that the
improvement or service is necessary, of benefit to the
properties to be assessed, and that the petition for the
improvement or service has been approved by sufficient and
proper petitioners. The findings of the assembly are
conclusive.[6]
In 1997 the Assembly passed Anchorage Ordinance 97-51, which created
Assessment District 1SD97 for a period of three years.7 When passing AO 97-51, the
Assembly amended the boundaries of the proposed Assessment District to exclude some
properties on K and L Streets. The building at 420 L Street, the property owned by
L Street Investments (L Street), was included in the original proposal but subsequently
carved out by the Assembly.
3
AMC 19.10.020(B).
4
AMC 19.20.010(B).
5
AMC 19.20.040.
6
AMC 19.20.050.
7
ACO 97-51 (1997).
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The boundaries of the District were Gambell Street to the east, Ninth
Avenue to the south, and First Avenue to the north; the western boundary ran from Ninth
Avenue to Sixth Avenue on K Street and from Sixth Avenue to Second Avenue on
I Street. The enumerated powers of the District were:
A. Maintenance, repair and upkeep of public capital
improvements located in the area of the assessment
district;
B. Maintenance, snow removal, dust suppression,
cleaning, beautification, and decoration of public
parks, places and pedestrian rights-of-way;
C. Visitor and tourism services;
D. Security services, but not including law enforcement
services;
E. Promotion of the assessment district and the
promotion of public events within the assessment
district; and
F. Other closely similar public services promoting the
vitality, stability and improvement of the assessment
district.[8]
The District collected assessments for its services based on the value of
each property within its boundaries:
Each assessable parcel within . . . Assessment District 1SD97
shall be assessed at a mill rate not to exceed 1.5 mills of
assessed value ($1.50 per $1,000 of assessed value) up to and
8
ACO 97-51 § 4 (1997); see also ACO 2010-58(S) § 5 (2010) (extending
the life of the District for an additional ten years); ACO 2000-98 § 4 (2000) (extending
the life of the District for ten years).
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including $10,000,000 plus $100 per $1,000,000 of assessed
value in excess of $10,000,000.[9]
Government-owned properties, churches, and non-profit religious, charitable, or
educational organizations were exempt from the assessments.10 Further, qualified owners
of single-family, owner-occupied residences who timely applied for an exemption were
also exempt from assessment.11
In 2000 the Assembly extended the life of the District for ten years.12
Starting in 2009, the Partnership canvassed property owners about extending the life of
the District again, as well as expanding the District to include businesses between I and
L Streets. The Partnership circulated petitions to property owners within the original
District for the owners to indicate whether they were in favor of continuing the District
and expanding it or whether they wished to terminate the District. The Partnership also
circulated petitions to property owners in the proposed expansion area for those owners
to indicate whether they were in favor of or opposed to extending the District.
Responses showed that owners of 316 properties — representing 62% of the total
assessment value of the District including the proposed expansion area — supported
reenactment and expansion. Owners representing 12% of the total annual assessment
stated they opposed the continuation of the district. The remaining property owners,
representing approximately 26% of the total annual assessment, did not return the
petitions. Out of the 63 properties in the proposed expansion area that returned petitions,
33 opposed being added to the District; those in opposition comprised a total annual
9
ACO 97-51 § 5; see also ACO 2010-58(S) § 6; ACO 2000-98 § 5.
10
ACO 97-51 § 7; see also ACO 2010-58(S) § 8; ACO 2000-98 § 6.
11
ACO 97-51 § 7; see also ACO 2010-58(S) § 8; ACO 2000-98 § 6.
12
ACO 2000-98.
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assessment of $67,615, or 43.2%.13 Thirty properties in the expansion area with a total
annual assessment of $89,057, or 56.8%, were in favor of the expansion.
On September 28, 2010, the Assembly passed AO No. 2010-58(S)
(Ordinance), which extended the life of the District and expanded it to include I Street
and L Street north of Ninth Avenue.14 This included L Street Investment’s building,
420 L Street, which had an estimated assessment of $10,962 annually.
L Street filed a complaint for declaratory judgment in the superior court
against the Municipality on November 24, 2010. L Street argued: (1) Section 9.02(a)
of the Municipality of Anchorage’s Charter does not authorize the Municipality to
finance services within the District by an assessment — rather, it can finance services
only by a tax levy; and (2) the District is a “service area,” and AS 29.35.450 prohibits
the expansion of a service area unless a majority of voters in the area to be added vote
in favor of expanding the service area. The Partnership intervened. All parties filed
cross-motions for summary judgment, and oral argument was held before Superior Court
Judge John Suddock on January 18, 2011. The superior court granted summary
judgment to the Municipality and the Partnership and denied L Street’s motion. The
court concluded that AS 29.35.450, which governs service areas such as parks and
recreation service areas, does not govern the District because the District “has a different
scope and administrative structure.” The court also concluded “that [S]ection 9.02 of the
13
It is not clear from the record if some of the property owners in the
expansion area did not return their petitions. Further, the calculation of 43.2% was
determined by summing the assessment value of those owners opposed ($67,615) and
dividing by the total assessment value of the expansion area ($156,672). This total
assessment value and the petition totals are different from the figures the appellant
provided in its brief because the appellant overlooked two petitions opposed to
expansion from Platinum Jaxx and an office building on Sixth Avenue.
14
ACO 2010-58(S).
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Charter does not prohibit assessments for services within the District.” The court entered
final judgment in favor of the Municipality and the Partnership.
L Street appeals.
III. DISCUSSION
A. Standard Of Review
A grant of summary judgment is reviewed de novo, “drawing all
permissible factual inferences in favor of, and viewing the facts in the light most
favorable to, the non-prevailing party.”15 “We affirm grants of summary judgment if
there are no genuine issues of material fact and the prevailing party is entitled to
judgment as a matter of law.”16 We apply our independent judgment when interpreting
statutes, municipal charters, and municipal codes.17
B. The Municipality of Anchorage Has The Authority To Fund Special
Services By Assessment.
The Municipality is a unified home rule municipality.18 Under article X,
section 11 of the Alaska Constitution, “A home rule borough or city may exercise all
15
Bradshaw v. State, Dep’t of Admin., Div. of Motor Vehicles, 224 P.3d 118,
121-22 (Alaska 2010).
16
Id. at 122.
17
Municipality of Anchorage v. Repasky, 34 P.3d 302, 305 (Alaska 2001).
18
AS 29.06.190(a) (“A borough and all cities in the borough may unite to
form a single unit of home rule government . . . .”); AS 29.06.410 (“A municipality
unified under AS 29.06.190-29.06.410 has all powers (1) not prohibited by law or
charter; and (2) granted to a home rule borough.”); AS 29.71.800(24) (defining “unified
municipality” as “a municipality unified in accordance with AS 29.06.190-29.06.410”);
Anchorage Municipal Charter §§ 1.01, 1.02 (naming municipality and defining its
boundaries); Anchorage Municipal Charter § 3.01 (“The municipality may exercise all
legislative powers not prohibited by law or by this Charter.”).
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legislative powers not prohibited by law or charter.”19 Section 3.01 of the Municipality’s
Charter similarly states, “The municipality may exercise all legislative powers not
prohibited by law or by this Charter.” The Commentary to this section reads:
By virtue of this section the new government will be a home
rule municipality. This section brings all allowable
legislative power from the state level to the local level.
However, Sections 9.01 and 9.02, and other provisions of the
Charter calling for voter approval of government action,
reserve to the people the basic power to determine if and
when the municipal power will be exercised.[20]
Although the legislative powers of the Municipality may be limited by state law or the
Municipal Charter, the legislative powers are not dependent on “specific grants of power
from a state legislature.”21 Instead, the Municipality derives its legislative power from
article X, section 11 of the Alaska Constitution. Thus, based on the plain language of the
Alaska Constitution and the Anchorage Municipal Charter, the District has the authority
19
Alaska Const. art. X, § 11.
20
Commission Commentary on Anchorage Municipal Charter: An aid to
legislative history, to assist in the interpretation of the Charter document, § 3.01 (Aug.
20, 1975).
21
Jefferson v. State, 527 P.2d 37, 42 (Alaska 1974); see also Liberati v.
Bristol Bay Borough, 584 P.2d 1115, 1120 n.19 (Alaska 1978) (“Dillon’s rule . . . states:
[a] municipal corporation possesses and can exercise the following powers and not
others. First, those granted in express words; second, those necessarily implied or
necessarily incident to the powers expressly granted; third, those absolutely essential to
the declared objects and purposes of the corporation not simply convenient, but
indispensable. The minutes of the constitutional convention reveal that the liberal
construction clause of Article X, Section 1 was intended to assure that general law
municipalities, as well as those having home rule powers, would not be governed by
[Dillon’s] rule, but would have their powers liberally interpreted.”).
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to impose an assessment on property owners within the District so long this action is not
limited by state law or the Charter.
L Street argues that because the Ordinance imposes an assessment for
services, the Ordinance is invalid because it finances those services in a manner contrary
to Section 9.02(a) of the Municipality’s Charter. Section 9.02(a) of the Charter states:
The Assembly by ordinance may establish assessment
districts to provide and finance capital improvements by
means of an assessment, or services by means of a tax levy.
The assessment or levy shall be proportionate to the benefit
received from and the burden imposed upon the improvement
or service. The Assembly by ordinance shall prescribe
uniform criteria for allocating the cost of the improvement or
service within an assessment district.
L Street argues that the Charter does not allow the Municipality to impose an assessment
to finance services in the District. Instead, L Street contends the Charter specifically
provides that the Municipality can only use an assessment to finance capital
improvements and can only use a tax levy to finance services. Thus, L Street considers
Charter Section 9.02 to be a limit on the Municipality’s home rule power. We disagree.
We conclude that Section 9.02(a) does not preclude the Municipality from
levying an assessment for services because the language in Section 9.02(a) is permissive
rather than mandatory, and does not expressly prohibit the Municipality from using an
assessment to finance services. The Municipality, as a unified home rule municipality,
enjoys broad authority to exercise all legislative powers not prohibited by law or
Charter.22 The use of assessments to finance services is not prohibited by law or Charter
and is therefore a valid exercise of the Municipality’s authority.
22
Alaska Const. art. X, § 11.
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1. The plain language of the Anchorage Municipal Charter does
not forbid the funding of special services by assessment.
In interpreting municipal charters, “we are guided by the rules of statutory
construction.”23 L Street argues, “The Charter must, if possible, be construed to give
effect to every word and phrase, and a construction that renders any portion of the
Charter superfluous should be rejected.”24 However, the Commentary to the Charter
specifically states, “As used in this Charter, ‘may’ is permissive, ‘shall’ is mandatory,
and ‘may not’ or ‘shall not’ are prohibitive.”25 The first sentence of Section 9.02(a)
states, “The assembly by ordinance may establish districts to provide and finance capital
improvements by means of an assessment, or services by means of a tax levy.”
(Emphasis added.) L Street interprets Section 9.02(a) as providing the Municipality with
the discretion to create and finance districts. Should the Municipality choose to create
a district, L Street interprets Section 9.02(a) as mandating the manner in which the
district is financed — an assessment for capital improvements or a tax levy for services.
The Partnership and the Municipality, in contrast, argue that “[n]othing in
this provision precludes the Municipality from creating a special assessment district to
furnish services.” They note that the last sentence of Section 9.02 provides for the
creation of assessment districts for services by stating, “The [A]ssembly by ordinance
shall prescribe uniform criteria for allocating the cost of the improvement or service
23
City & Borough of Sitka v. Int’l Bhd. of Elec. Workers, Local Union 1547,
653 P.2d 332, 335-36 (Alaska 1982) (internal citation omitted).
24
See Mech. Contractors of Alaska, Inc. v. State, Dep’t of Pub. Safety,
91 P.3d 240, 248 (Alaska 2004).
25
Commission Commentary on Anchorage Municipal Charter: An aid to
legislative history, to assist in the interpretation of the Charter document, § 17.11
(Aug. 20, 1975).
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within an assessment district.” (Emphasis added.) Further, they argue that “the
permissive ‘may’ cannot lawfully be construed as a prohibition on any other manner of
funding services” because “[w]here no Charter provision and no statute provides that the
Municipality ‘may not’ or ‘shall not’ fund services with an assessment, there is no
prohibition on doing so.”
This argument is compelling. Under both article X, section 11 of the
Alaska Constitution and Section 3.01 of the Municipality’s Charter, the Municipality
“may exercise all legislative powers not prohibited by law or charter.” Section 9.02 of
the Charter contains no prohibitory language, and the Commentary to the Charter
provides instruction on how to interpret the Charter, undermining L Street’s
interpretation. L Street’s interpretation of the permissive “may” would create a
prohibition where none exists.
L Street also contends that the basic principles of statutory construction,
particularly the maxim expressio unius est exclusio alterius,26 “requires the Municipality
to finance services in the District by use of a tax levy, instead of an assessment,” and that
the Municipality’s interpretation “renders § 9.02(a) a nullity.” L Street argues that the
specification in Section 9.02 of a tax levy to finance services “supports the conclusion
that all other means of financing, including by assessment, are not allowed.”
The superior court concluded that applying the maxim expressio unius est
exclusio alterius was “inappropriate” because “there is no categorical listing of items
26
This maxim is a canon of statutory construction meaning “where certain
things are designated in a statute, ‘all omissions should be understood as exclusions.’ ”
Puller v. Municipality of Anchorage, 574 P.2d 1285, 1287 (Alaska 1978) (quoting 2A
C. SANDS , SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 47.23, at 123 (4th
ed. 1973)).
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attended by a telling omission” in Section 9.02(a). We agree. The United States
Supreme Court has stated:
As we have held repeatedly, the canon expressio unius est
exclusio alterius does not apply to every statutory listing or
grouping; it has force only when the items expressed are
members of an “associated group or series,” justifying the
inference that items not mentioned were excluded by
deliberate choice, not inadvertence.[27]
In a different case the Supreme Court explained, “The canon depends on identifying a
series of two or more terms or things that should be understood to go hand in hand,
which is abridged in circumstances supporting a sensible inference that the term left out
must have been meant to be excluded.”28
Here, as the superior court concluded, financing capital improvements by
means of an assessment and financing services by means of a tax levy are not “members
of an associated group or series” that “justify[] the inference that items not mentioned
were excluded by deliberate choice.”29 This is particularly apparent when considering
that the Commentary to the Charter instructs that the word “may,” which is used in
Section 9.02 to describe how the Municipality can finance capital improvements and
services, is “permissive.”30 Applying expressio unius est exclusio alterius is
inappropriate because the use of the word “may” in Section 9.02 undermines the
27
Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (quoting United
States v. Vonn, 535 U.S. 55, 65 (2002)).
28
Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81 (2002).
29
Barnhart, 537 U.S. at 168 (internal quotation marks omitted).
30
See Commission Commentary on Anchorage Municipal Charter: An aid to
legislative history, to assist in the interpretation of the Charter document, § 17.11
(Aug 20, 1975).
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“sensible inference that the term left out must have been meant to be excluded.”31 This
canon of statutory construction does not support L Street’s argument that Section 9.02(a)
of the Charter forbids the funding of special services by assessment.32
31
Chevron U.S.A. Inc., 536 U.S. at 81.
32
We address one final argument related to the plain language of the
Anchorage Municipal Charter and the ordinances at issue here. During oral argument,
a discussion arose regarding the significance of the preambles to the ordinances.
Anchorage Ordinance 96-77(S-1) states in its preamble that the Assembly was
“authorized in Charter Section 9.02” to amend Title 19 of the Municipal Code to provide
for assessment districts for services. In subsequent ordinances creating and extending
the life of the Downtown Improvement District, the preambles contain the statement:
“WHEREAS, in accordance with Anchorage Municipal Charter Section 9.02, the
Anchorage Assembly provided for the creation of assessment districts for public
services . . . .” See ACO 97-51 (1997); ACO 2000-98 (1998); ACO 2010-58(s) (2010).
To the extent one can argue that the Assembly’s references to Section 9.02 in the
preambles somehow indicate that the Municipality is no longer operating under its home
rule power but instead cabining its power to be within the confines of Section 9.02,
which L Street argues is a narrower power which would not allow creating assessment
districts for public services, we provide two responses.
First, these preamble statements do not preclude the Assembly from
creating assessment districts for services because “[t]he preamble of a legislative act is
not part of the law, and it cannot be used to discern the legislature’s intent if no doubt
exists as to a statute’s meaning.” 1A N ORMAN J. SINGER & J.D. S HAMBIE SINGER ,
SUTHERLAND STATUTORY CONSTRUCTION § 20:3, 123-25 (7th ed. 2011); see also
Commercial Fisheries Entry Comm’n v. Apokedak, 680 P.2d 486, 488 n.3 (Alaska 1984)
(stating that a preamble “can neither restrain nor extend the meaning of an unambiguous
statute; nor can it be used to create doubt or uncertainty which does not otherwise exist”
(quoting 2A C. SANDS & SUTHERLAND , STATUTES AND STATUTORY CONSTRUCTION
§ 47.04 (4th ed. 1973))). The ordinances are abundantly clear that they create
assessment districts for services and there is no need to examine the preamble to
determine the Assembly’s intent.
Second, even if we were to afford the preambles legal weight, the language
in Section 9.02(a) does not narrow the power of the Municipality to disallow it from
(continued...)
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2. The legislative history of the Municipal Charter does not forbid
the funding of special services by assessment.
“Although the starting point in construing a statute is the language of the
statute itself, reference to legislative history may provide insight that is helpful in
determining the statute’s meaning.”33 L Street argues that the Anchorage Area Charter
Commission changed Section 3.01 to add the phrase “or by this Charter” in order “to
specifically reject the claims that the Municipality ‘would have no limitation upon its
powers except those imposed by State law.’ ”34 L Street contends that this legislative
history is “dispositive” and establishes that Section 3.01 “mandates that [Section] 9.02(a)
be given legal effect and meaning, and not written out of the Charter.”
This argument is unpersuasive. In June 1975, after reviewing the first draft
of the Charter, the Charter Production Committee recommended that the Anchorage Area
Charter Commission add the phrase “or by this charter” to Section 3.01, “Powers of the
Municipality.”35 The Charter Production Committee recognized that adding this phrase
32
(...continued)
creating assessment districts for public services. As discussed in Part III.B.1 of this
opinion, the use of the word “may” in Section 9.02, when interpreted under the
guidelines of the Commentary to the Charter, is permissive and cannot prohibit the
Municipality from creating assessment districts for public services. See Commission
Commentary on Anchorage Municipal Charter: An aid to legislative history, to assist in
the interpretation of the Charter document, § 17.11 (Aug. 20, 1975).
33
City & Borough of Sitka v. Int’l Bhd. of Elec. Workers, Local Union 1547,
653 P.2d 332, 336 (Alaska 1982) (citing N. Slope Borough v. Sohio Petroleum Corp.,
585 P.2d 534, 540 (Alaska 1978)).
34
Charter Prod. Comm., Committee Report #3 to the Anchorage Area Charter
Commission (June 25, 1975).
35
Id. In the report, the section number was “2.01,” but the substance of the
section is identical to what eventually became Section 3.01 of the Charter. See
(continued...)
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was “simply redundant” because the Charter defined the word “law” as including the
Charter,36 but the Committee made this recommendation to assuage voters who had
feared “an omnipotent municipal government.”37 The Charter Commission followed the
recommendation of the Committee and added this phrase to the Section even though
there would be no additional legal effect. Contrary to L Street’s assertions, the phrase
“or by this Charter” does not provide additional limitations on the powers of the
Municipality such that Section 9.02 must be interpreted to require the Municipality to
finance the District by tax levy only. As we have explained, the Municipality has the
broad authority to exercise all legislative powers not prohibited by law or by charter.38
The legislative history of Section 3.01 does not indicate that the use of assessments to
finance services was intended to be prohibited by law or by the Anchorage Municipal
Charter.
35
(...continued)
Anchorage Municipal Charter art. III, § 3.01.
36
Section 17.3(f) of the Anchorage Municipal Charter provides:
“Law” means this Charter, the ordinances and resolutions
preserved by this Charter, or enacted pursuant to it, and those
portions of the statutes of the State of Alaska and the
Constitutions of the State of Alaska and of the United States
which are valid limitations on the exercise of legislative
power by home rule governments.
37
Charter Prod. Comm., Committee Report #3 to the Anchorage Area Charter
Commission (June 25, 1975).
38
Alaska Const. art. X, § 11.
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C. State Law Does Not Govern The Expansion Of The Downtown
Improvement District.
L Street argues that the District is a “service area” under state law;
therefore, before the Assembly could expand the District, AS 29.35.450 required that a
dual majority of the voters residing in the area to be annexed and voters residing in the
existing District vote in favor of the expansion.39 But AS 29.35.450 applies to “service
area[s] that provide[] road, fire protection, or parks and recreation services.”40 The
Municipality and the Partnership assert that the District is “purely a creature of
Anchorage Municipal law” governed by Chapter 19.20 of the Municipal Code.41 We
agree with the Municipality and the Partnership.
1. The Downtown Improvement District is purely a creature of
municipal law.
Anchorage Municipal Code 19.10.020 states that a special assessment
district “is and shall remain a municipal mechanism for delivering special municipal
39
AS 29.35.450(c) provides: “A service area that provides road, fire
protection, or parks and recreation services in which voters reside may not be altered . . .
unless that proposal is approved, separately, by a majority of the voters who vote on the
question and who reside in each of the service areas or in the area outside of service areas
that is affected by the proposal.”
40
Id.
41
In its order, the superior court determined that the District was “impliedly
authorized” by AS 29.46.010(a). This statute states, “A municipality may assess against
the property of a state or federal governmental unit and private real property to be
benefited by an improvement all or a portion of the cost of acquiring, installing, or
constructing capital improvements.” We disagree with the superior court’s reasoning.
Alaska Statute 29.46.010(a) does not apply because the District is purely a creature of
Anchorage municipal law. We affirm the superior court’s decision based on this
conclusion. See Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996, 1001 (Alaska
2005) (“We may affirm a judgment on any grounds that the record supports, even if not
relied on by the superior court.”).
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government services.”42 The Downtown Improvement District is a special assessment
district governed by the Anchorage Municipal Code, not AS 29.35.450.
As we previously explained, the authority to create the District arose from
Anchorage Ordinance 96-77(S-I), which the Assembly enacted to broaden “special
assessment districts” under Title 19 of the Municipal Code to include the provision of
services.43 The Assembly subsequently passed Anchorage Ordinance 97-51 which
created Assessment District 1SD97, the Downtown Improvement District, for a period
of three years.44 In 2000 the Assembly extended the life of the District for ten years.45
Then on September 28, 2010, the Assembly passed AO No. 2010-58(S) to extend the life
of the District again and expand its boundaries.46 This expansion, based solely on
ordinances the Assembly passed, is what is at issue now. As a unified home rule
municipality, the Municipality has the authority to exercise all legislative powers not
prohibited by law or charter,47 including expanding the boundaries of a special
assessment district.
2. AS 29.35.450 is inapplicable.
a. AS 29.35.450 does not indicate that the District is within
the statute’s scope.
Alaska Statute 29.35.450(c) states in part:
42
AMC 19.10.020(C) (emphasis added).
43
ACO 96-77(S-I) (1996).
44
ACO 97-51 (1997).
45
ACO 2000-98 (2000).
46
ACO 2010-58(S) (2010).
47
Alaska Const. art. X, § 11.
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A service area that provides road, fire protection, or parks
and recreation services in which voters reside may not be
altered or combined with another service area unless that
proposal is approved, separately, by a majority of the voters
who vote on the question and who reside in each of the
service areas or in the area outside of service areas that is
affected by the proposal.
The District does not provide road or fire protection services, though
L Street contends that the District does provide “parks and recreation services” because
it has the authority to beautify and decorate the public parks, places, and pedestrian
rights-of-way.48 L Street also argues that because the Anchorage Parks and Recreation
Service Area is “responsible for beautifying, operating and maintaining Park and
Recreation assets”49 and the District has a similar responsibility, the District is providing
“parks and recreation services” under the statute.
Under the plain language of AS 29.35.450, the statute applies to “service
areas” that provide “road, fire protection, or parks and recreation services.” While the
statute clearly applies to a service area such as the Anchorage Parks and Recreation
Service Area, which has the sole purpose of providing parks and recreation services, it
does not expressly apply to all service areas that provide any parks and recreation
services, however minimal. The statute also does not apply to a business improvement
district that provides a wide variety of services, only one category of which happens to
include “[m]aintenance, snow removal, dust suppression, cleaning, beautification, and
decoration of public parks, places and pedestrian rights-of-way.” And the legislative
48
ACO 2010-58(S) § 5 (2010).
49
See AMC 27.30.080 (1996) (establishing the Anchorage Parks and
Recreation Service Area).
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history of AS 29.35.450 clarifies that the legislature intended to address only certain
types of service areas.
b. The legislative history of AS 29.35.450 does not suggest
that the District is included in the statute’s scope.
L Street argues that the legislative history “establishes that the primary
purpose of AS 29.35.450(c) was to take the power to expand service areas from local
governments such as the Municipality, and vest final authority over such expansion in
the voters to be added to the service area.” The Partnership and the Municipality respond
that the “legislative history is clear in showing that the legislation was meant to address
only certain types of service areas and nothing more.” The superior court agreed,
concluding:
The court finds nothing in the legislative history of
[AS 29.35.450(c)] to suggest anything beyond the obvious:
that the legislature wished to preclude the expansion of three
well-defined types of traditional service areas over voter
objection. Nothing suggests such fervency about dual-
majority elections that the legislature wished to impose them
in instances where a non-road, non-fire-protection, non-park
service area or special assessment district might provide de
minimis road, fire, or beautification functions.
We agree with the superior court.
In Area G Home & Landowners Organization, Inc. (HALO) v. Anchorage,
we addressed the Anchorage Assembly’s expansion of the Anchorage Police Service
Area to include the growing Hillside neighborhood without a separate vote by the
annexed Hillside residents.50 The appellants in that case argued, similar to L Street here,
50
927 P.2d 728, 730-31 (Alaska 1996).
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that the term “area affected” in Section 9.01 of the Anchorage Municipal Charter51 meant
the geographical area to be added to or removed from a service area.52 We affirmed the
authority of the Anchorage Assembly to expand the service area to include the Hillside
without a separate vote by Hillside residents.53
Following this decision, in 2001 Hillside’s state representative Con Bunde
sponsored a bill to amend AS 29.35.450 to provide “for voter approval of the formation,
alteration, or abolishment of certain service areas.”54 Throughout the committee hearings
on this bill, Representative Bunde made it clear that this bill would mainly address road
services areas and one fire service area.55 Representative Bunde stated, “This legislation
does not address police service. The police service issue was settled by the Alaska
Supreme Court.”56 Much of the discussion and concern in the committees was over the
51
Anchorage Municipal Charter § 9.01(a) provides:
A service area may be created, altered, or abolished only with
the approval of a majority of those voting on the question
within the area affected, or, if no qualified voter resides
within the area, with the written consent of the owners of all
real property within the area affected. However, the
Assembly, by ordinance may consolidate service areas in
which services are provided by the municipality at the same
level in each of the areas to be consolidated.
52
HALO, 927 P.2d at 734.
53
Id. at 739.
54
Rep. Con Bunde, Sponsor Statement for SCSCSSSHB 13, 22nd Leg., 1st
Sess.
55
Minutes, H. Community & Reg’l A ffairs Comm. Hearing on SSHB. 13,
22nd Leg., 1st Sess. (Jan. 25, 2001) (comments of Representative Bunde).
56
Id.; see also Minutes, H. Judiciary Comm. Hearing on SSHB 13, 22nd Leg.,
(continued...)
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constitutionality of the bill. In all five of the committee meetings in the House and
Senate, Representative Bunde tailored his comments to focus on “road service areas,”
and the discussions stemmed from that understanding.57 Ultimately the legislature listed
“road, fire protection, or parks and recreation services” in AS 29.35.450(c), although
earlier versions of the bill only listed “road or fire protection services.”58
As the superior court stated, the legislative history of AS 29.35.450 shows
that the legislature was focused on specific types of service areas. It does not suggest
that the legislature either contemplated or intended to impose the voting requirements of
AS 29.35.450(c) on a business improvement district that does not primarily provide road,
fire, or park and recreation services, but may provide some services in those areas.
Neither the plain language nor the legislative history of AS 29.35.450 indicates that the
56
(...continued)
1st Sess. (Feb. 5, 2001) (comments of Representative Bunde).
57
Minutes, H. Community & Reg’l Affairs Comm. Hearing on SSHB 13,
22nd Leg., 1st Sess. (Jan. 25, 2001) (comments of Representative Bunde); Minutes, H.
Community & Reg’l Affairs Comm. Hearing on H.B. 13, 22nd Leg., 1st Sess.
(Jan. 30, 2001) (comments of Representative Bunde); Minutes, H. Judiciary Comm.
Hearing on SSHB 13, 22nd Leg., 1st Sess. (Feb. 5, 2001) (comments of Representative
Bunde); Minutes, H. Judiciary Standing Comm. Hearing on H.B. 13, 22nd Leg., 1st
Sess. (Feb. 14, 2001) (comments of Representative Bunde); Minutes, Senate Judiciary
Comm. Hearing on H.B. 13, 22nd Leg., 1st Sess. (Apr. 2, 2001) (comments of
Representative Bunde).
58
See H.B. 13, 22nd Leg., 1st Sess. (2001).
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District is a service area subject to its terms.59 Accordingly, we hold that the District is
not a service area subject to the voting requirements of AS 29.35.450.
IV. CONCLUSION
We AFFIRM the superior court’s grant of summary judgment.
59
L Street also raises a due process argument. Under AMC 19.20.010(B)
(1996), the District may be “extended only with the approval of the property owners who
would bear more than 50 percent of the estimated cost of the improvement or service.”
L Street argues that “[s]o long as a sufficient number of property owners already in the
District vote to expand the District, the District can be expanded regardless and in spite
of the wishes of those in the area to be annexed.” We do not reach this constitutional
argument because it is inapplicable here. While the Assembly appears to have only
examined the total number of petitions in favor of expanding and continuing the District
rather than also looking at the subset of petitions from only those property owners within
the proposed expansion, thirty properties in the expansion area with a total annual
assessment of $89,057, or 56.8%, were in favor of the expansion. Thus, a majority of
business owners in the area affected by the proposed expansion voted in favor of
expanding the District to include their properties. L Street’s argument is inapposite.
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