Corkery v. Municipality of Anchorage

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,
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corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
BROOKE CORKERY and PATRICK )
CORKERY, ) Supreme Court No. S-16684
)
Appellants, ) Superior Court No. 3AN-15-06252 CI
)
v. ) OPINION
)
MUNICIPALITY OF ANCHORAGE, ) No. 7292 – September 14, 2018
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Dani Crosby, Judge.
Appearances: David D. Clark, Law Office of David Clark,
Anchorage, for Appellants. Samuel C. Severin, Assistant
Municipal Attorney, and Rebecca A. Windt-Pearson,
Municipal Attorney, Anchorage, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
BOLGER, Justice.
I. INTRODUCTION
Homeowners appeal the denial of their application for a variance by the
Municipality of Anchorage Zoning Board of Examiners and Appeals. The homeowners’
house exceeds the 30% lot coverage limit for their zoning district by over 10% due to a
renovation performed in 1983 by a prior owner. The Board denied the variance
application because it concluded that three of the seven standards required to grant a
variance had not been satisfied. On appeal, the homeowners challenge the Board’s
interpretation of the variance standards. They also argue that the equitable doctrine of
laches bars the Board from denying their variance request. Finally, the homeowners
argue that the Board’s consideration of a memo written by a Municipality attorney
violated their due process rights and that this violation warrants a trial de novo in the
superior court.
After independently interpreting the variance standards, we agree with the
Board’s interpretation. In light of our de novo interpretation of these variance standards,
any error in the memo’s legal advice or in the process of the Board’s consideration is
harmless and does not warrant trial de novo. We also conclude that the homeowners
cannot invoke the defense of laches because, in the zoning context, this defense is
available only to defendants in a zoning enforcement action, and here the homeowners
are plaintiffs seeking affirmative relief. We therefore affirm the superior court’s decision
affirming the Board’s denial of the homeowners’ variance request.
II. FACTS AND PROCEEDINGS
A. Facts
Patrick and Brooke Corkery have owned their Anchorage home since 1998.
The house sits on an 11,250-square-foot1 corner lot; the lot slopes downhill to the
southwest at a minor grade. The Municipality of Anchorage originally issued a
certificate of occupancy in 1965 permitting a two-story, 2,359-square-foot house on the
lot. In 1965 (and currently) the lot was zoned in R-1A, for which the maximum lot
1
This is the recorded plat size, but a 2014 survey indicated that the lot is
actually 10,970 square feet. This minor discrepancy does not affect the outcome of this
case.
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coverage is 30%. In 1969 a building permit was issued for the addition of a 184-square­
foot greenhouse to the home.
In 1983 a prior owner substantially expanded the house so that the new lot
coverage significantly exceeded the 30% limit. Although the former owner claims she
secured all necessary building permits for the addition, the Municipality has no record
of any permit being issued for the home expansion. The home’s footprint is currently
4,401 square feet. The footprint of the home has not increased since 1983, with the
exception of 60 square feet that the Corkerys added to the deck (without obtaining a
permit) in 2011. The Municipality has since taxed the property based on the increased
square footage.
In 2013 the Corkerys were replacing the home’s roof when they discovered
significant rot in the roof and in the wall between the home interior and the attached
greenhouse. This damage apparently placed the greenhouse at risk of imminent
structural failure and required immediate attention. The Corkerys applied for a
construction permit to tear down and rebuild the greenhouse. In August 2014 the
Municipality issued the Corkerys a conditional permit that allowed them to perform the
necessary repairs at their own risk but required them to apply for and obtain a zoning
variance before a certificate of occupancy would be issued for the home following the
repairs. The variance was required because the footprint of the home exceeded 30% of
the lot coverage and therefore violated the R-1A zoning restriction.2
2
See Anchorage Municipal Code (AMC) 21.40.030(H) (2015) (setting
maximum lot coverage for R-1A zoned districts at 30%). All citations to Title 21 (the
zoning portion) of the AMC in this opinion are to the “old code,” which expired on
December 31, 2015, because this code was in effect when the Corkerys applied for the
variance and they elected to have their application reviewed under it.
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B. Zoning Board Of Examiners And Appeals Proceedings
The Corkerys applied for a zoning variance in October 2014 to allow a lot
coverage of 40.12%, a variance of 10.12% over the permitted lot coverage. Their
application urged that a variance was required in order to allow the home “to remain and
obtain occupancy.” In a later addendum to their application, the Corkerys offered to
remove the portion of their deck that they had added in 2011 along with a portion of the
deck that encroached on the secondary front-yard setback (which would reduce the total
lot coverage to 39.4%) but otherwise proposed maintaining the home’s current footprint.
Municipality planning staff conducted an analysis of the variance
application and issued a memo recommending that the application be denied. In making
this recommendation, the memo considered the seven standards used to evaluate
applications for a variance from zoning regulations:
a. There exist exceptional or extraordinary physical
circumstances of the subject property such as, but not
limited to, streams, wetlands, or slope, and such
physical circumstances are not applicable to other land
in the same district;
b. Because of these physical circumstances, the strict
application of this code would create an exceptional or
undue hardship upon the property owner, and would
deprive the applicant of rights commonly enjoyed by
other properties in the same district under the terms of
the zoning ordinance;
c. The hardship is not self-imposed, and special
conditions and circumstances do not result from the
actions of the applicant and such conditions and
circumstances do not merely constitute inconvenience;
d. The variance, if granted, will not adversely affect the
use of adjacent property as permitted under this Code;
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e. The variance, if granted, is in keeping with the intent
of this Code, will not change the character of the
zoning district in which the property is located, and
will not permit a use that is not otherwise permitted in
the district in which the property lies;
f. The variance, if granted, does not adversely affect the
health, safety, and welfare of the people of the
Municipality of Anchorage; and
g. The variance granted is the minimum variance that
will make possible a reasonable use of the land.[3]
The memo concluded that four of the seven standards, standards one, two, three, and
seven, were not substantially met.4 The memo recommended in the alternative that, if
the Board found that all the standards were satisfied, it should grant the variance on the
condition that a 325-square-foot deck, including the portion added in 2011, be removed.
In November 2014, while the Corkerys’ variance application was pending,
assistant municipal attorney Quincy Hansell wrote a memo to senior municipal planner
Margaret O’Brien entitled “Update on Variance Law.” The Hansell memo was drafted
in response to an August request from O’Brien for an update on the law governing
variance requests. O’Brien’s request stemmed from an argument made by a party in a
recent variance proceeding. The party contended that our opinion in City & Borough of
Juneau v. Thibodeau5 had been overruled. At the time that she requested the legal
opinion, O’Brien had no knowledge of the Corkerys’ case — indeed, their variance
3
A.M.C. 21.15.010(C)(1). The memo, the Board, and the parties refer to these
standards by number rather than letter, and we do the same.
4
See AMC 21.15.010(C), (F)(1) (providing that the Board must find that the
variance application “substantially meets” the seven standards before the Board may
grant the variance).
5
595 P.2d 626 (Alaska 1979).
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application had not yet been submitted — and O’Brien did not learn of the Corkerys’
application until about one year after requesting the memo.
The Hansell memo makes a very brief reference in its introduction to the
specific case that spurred O’Brien’s request, but otherwise its analysis is framed in
general terms and does not reference a specific case. The memo first concludes that the
relevant portion of Thibodeau — in which we set out the standard for granting a variance
— was still good law. It asserts that the only portion of Thibodeau that had been
subsequently overruled related to an ancillary issue of statutory interpretation.6 The
Hansell memo then provides an overview of the law governing variance requests,
including this court’s case law, the relevant Anchorage Municipal Code provisions, and
case law from other jurisdictions. The crux of the memo’s message on this point was the
paucity of Alaska-specific case law on variance standards. The memo concludes by
stating:
There is very little case law available to indicate any trend in
Alaska because very few decisions made at the local level are
appealed. Nationwide, the trend in case law over recent years
shows a strengthening of the standards for granting variances.
Yet studies show that at the local level, boards tend to grant
most requests for variances — with little regard to any rules
of law expressed by the courts. We imagine many of these
would be overturned, if appealed. We expect the [Board] to
diligently apply and follow the law to avoid generating costly
appeals. (Footnotes omitted.)
O’Brien received the Hansell memo and distributed it to the Board’s
members in early December 2014. A week later, on December 11, the Board held the
first of two hearings in which it reviewed the Corkerys’ variance application. After
6
See State v. Alex, 646 P.2d 203, 208 n.4 (Alaska 1982) (“Our cases listed
above [including Thibodeau] are . . . no longer authoritative to the extent that they hold
for a mechanical application of the plain meaning rule.”).
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presentations from both municipal staff7 and the Corkerys’ representative, the Board
voted to postpone voting on the application. The postponement was to allow municipal
planning staff to provide additional information, including whether the Corkerys’ home
was eligible for nonconforming rights. Municipal staff indicated that if the Corkerys
obtained a nonconforming-rights determination for the lot coverage, a variance would
not be necessary.8 After voting for postponement, the Board Chair noted that he had not
“had a chance to read the [Hansell memo] that was in [the Board’s] packet,” but he
planned to ask questions about it at the next meeting. Another Board member responded
that he had read the Hansell memo and “[i]t added clarity as hoped for,” but he was
“interested in other [B]oard members’ comments either offline or at the next meeting to
help further guide [him] in [his] efforts to act appropriately.”9
The Board again considered the Corkerys’ variance application at its
January 8, 2015 meeting. At the conclusion of the hearing, the Board denied the
application by a vote of 4-2. One of the Board members referenced the Hansell memo
in explaining her vote for denial.
7
At the hearing the Municipality appeared to change its position from that
in the planning staff memo with regard to standard three. It stated that standard three
was “partially met” and noted that “removing . . . over a thousand square feet from the
existing house is considered more than just an inconvenience.”
8
A structure is eligible for nonconforming status if it lawfully “existed at the
original effective date of adoption . . . of applicable regulations” and has not increased
its nonconformity since that date. AMC 21.55.040(A). If a structure is determined to
be nonconforming, it “may be continued so long as it remains otherwise lawful,”
notwithstanding the applicable zoning regulations. Id.
9
After the first hearing, the municipal planning staff issued a supplementary
memo addressing whether the Corkerys’ home was eligible for nonconforming rights.
The supplementary memo concluded that the home was not eligible for nonconforming
status because the expansion of the house postdated enactment of the lot coverage limit.
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In its written findings of fact issued two months later, the Board found that
standards one, two, and seven were not met. Standard one was not met because “[t]he
physical condition of the land [did] not contribute to the need for a variance from lot
coverage.” The findings noted that the dissenting Board members found this standard
met based on the lot’s corner position and sloping topography, as well as the discrepancy
between the recorded plat size and the lot’s actual size. The Board found that standard
two was not met because, even if the lot was oddly shaped and sloping, these physical
circumstances did “not necessitate increasing the building footprint over the maximum
allowed.” The dissenting members stated, however, that “reducing the lot coverage
would be an undue hardship because parts of the house would need to be removed.”
Finally, the Board found that standard seven was not satisfied because the Corkerys
could make reasonable use of the property without the variance. The dissenters
countered that this standard was met because “removing over 1,000 square feet of
building footprint to meet the maximum lot coverage requirement is not reasonable.”
C. Superior Court Proceedings
The Corkerys appealed the Board’s decision to the superior court. During
the superior court proceedings, the Corkerys sought to obtain the Hansell memo from the
Municipality because Board members had referenced it during the hearings. After
initially refusing on the basis of attorney-client privilege, the Municipality ultimately
waived the privilege and produced the memo but objected to the Corkerys relying on the
memo in their appeal. The Corkerys then moved to add the memo to the record on
appeal, arguing that it was necessary to the resolution of their case. They also requested
a trial de novo in the superior court on the basis that “the [Municipal] Attorney’s Office
secretly poisoned the well” in the Board proceedings by distributing the Hansell memo
to the Board “shortly before the Corkerys[’] variance petition was heard.” (Emphasis
omitted.)
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The superior court denied the Corkerys’ motion to expand the record on
appeal to include the Hansell memo. After the superior court denied their motion for
reconsideration, the Corkerys petitioned this court for interlocutory review; we denied
the petition. While that petition was pending, the superior court denied the motion for
a trial de novo.
Proceedings continued in the superior court, where the Corkerys raised
three primary arguments: the Board incorrectly interpreted the variance provision to
require compliance with all seven standards, rather than just a substantial number of
them; their existing home constituted an exceptional or extraordinary physical
circumstance necessitating a variance; and the Municipality was barred by the doctrine
of laches from refusing to grant the variance. The superior court rejected each of these
arguments and affirmed the Board’s decision to deny the variance.
The Corkerys appeal the superior court’s decision.
III. STANDARD OF REVIEW
“When the superior court acts as an intermediate appellate court, we
independently review the merits of the underlying administrative decision.”10 As a
general matter, our “review of zoning board decisions is narrow and . . . a presumption
of validity is accorded those decisions.”11 However, in this case the Corkerys allege that
the Board’s interpretation of the variance standards in the zoning code was improperly
influenced by the Hansell memo. Accordingly, we decline to grant deference to the
Board’s interpretation here and instead interpret the variance standards de novo,
10
Heller v. State, Dep’t of Revenue, 314 P.3d 69, 72 (Alaska 2013).
11
Native Vill. of Eklutna v. Bd. of Adjustment, 995 P.2d 641, 643 (Alaska
2000) (omission in original) (quoting S. Anchorage Concerned Coal., Inc. v. Coffey,
862 P.2d 168, 173 (Alaska 1993)).
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exercising our independent judgment.12 We interpret the variance standards “according
to reason, practicality, and common sense, considering the meaning of the [ordinance’s]
language, its legislative history, and its purpose.”13 We will adopt “the rule of law that
is most persuasive in light of precedent, reason, and policy.”14 Finally, whether the
doctrine of laches applies to a claim is a question of law reviewed de novo.15
IV. DISCUSSION
A. The Corkerys, As Plaintiffs, Cannot Invoke Laches To Obtain The
Affirmative Relief Of A Variance.
The Corkerys argue that they should be permitted to invoke the doctrine of
laches to bar the Municipality from denying them a variance. The Corkerys claim that
laches is available to them because, even though they are nominally the plaintiffs in this
action (given that they initiated the variance application), they are functionally the
12
See Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254 (Alaska
2000) (“Where the interpretation of a zoning ordinance presents only a question of
statutory construction which does not involve agency expertise or the formulation of
fundamental policies, we apply the independent judgment standard of review.”). Our
decision to review the variance standards de novo moots the Corkerys’ due process
arguments relating to the allegedly erroneous legal analysis contained in the Hansell
memo. And we need not decide whether there was any legal error in distributing the
memo to the Board because any error was clearly harmless given that the memo does not
contain any information specific to this case. As for the Corkerys’ argument that the
record should be supplemented to include the Hansell memo, we note that the memo is
included in the superior court record for our review.
13
Tweedy v. Matanuska-Susitna Borough Bd. of Adjustment & Appeals,
332 P.3d 12, 16 (Alaska 2014) (quoting McDonnell v. State Farm Mut. Auto. Ins. Co.,
299 P.3d 715, 721 (Alaska 2013)).
14
Id. (quoting Gillis v. Aleutians E. Borough, 258 P.3d 118, 120-21 (Alaska
2011)).
15
Kollander v. Kollander, 322 P.3d 897, 902 (Alaska 2014).
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defendants against the Municipality’s denial of an unconditional building permit.
According to them, the Municipality’s denial of the building permit was “offensive in
nature,” which put the Municipality “in the position of a plaintiff.” Therefore, the
Corkerys claim, their resulting variance application was essentially a defense against that
denial, and they are permitted to invoke laches as a defense. The Municipality counters
that the doctrine of laches may be used only as a “shield” against liability rather than as
a “sword” to compel action, i.e., the granting of a variance. The superior court agreed
with the Municipality and concluded that the Corkerys could not invoke the doctrine of
laches as a basis to reverse the Board’s variance denial.
“Laches is an equitable defense available ‘when a party delays asserting a
claim for an unconscionable period.’ ”16 In order for laches to bar a claim, two elements
must be shown: (1) the plaintiff unreasonably delayed seeking relief, and (2) this delay
has resulted in “prejudice to the defendant.”17 The party raising laches bears the burden
of demonstrating these two elements.18 But before determining whether these two
elements are satisfied, we must decide the threshold question whether the laches defense
may be invoked by the Corkerys at all.19
16
Burke v. Maka, 296 P.3d 976, 979 (Alaska 2013) (quoting Whittle v. Weber,
243 P.3d 208, 217 (Alaska 2010)).
17
Id. (quoting Whittle, 243 P.3d at 217).
18
Schaub v. Schaub, 305 P.3d 337, 343-44 (Alaska 2013).
19
See Kollander, 322 P.3d at 902 (separating the question whether laches
applies to the claim from the question whether the elements of laches are satisfied).
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We previously considered laches in the context of a zoning dispute in
Jackson v. Kenai Peninsula Borough ex rel. City of Kenai.20 That case involved a zoning
enforcement action against the owner of an auto repair business located in an area of
Kenai zoned for residential use.21 We concluded that laches did not bar Kenai from
bringing the zoning enforcement action, but noted we were not foreclosing the possibility
that laches could ever apply in such an action.22 We instructed, however, that the defense
of laches “should not be permitted to frustrate the enforcement of a valid zoning
regulation except in the clearest and most compelling circumstances.”23 As an example
of a case where laches may be properly invoked as a defense in a zoning enforcement
action, we cited the example of an innocent third party purchasing a nonconforming
property.24 The Corkerys rely on Jackson to argue that the specific circumstances of
their case warrant the application of laches. However, even if we accept that laches may
provide a defense to a zoning enforcement action in some circumstances, this conclusion
would not control our decision in this case. We have repeatedly and consistently
characterized laches as an equitable defense that may be asserted by a defendant.25
20
733 P.2d 1038 (Alaska 1987).
21
Id. at 1038-40.
22
Id. at 1044.
23
Id. (quoting Universal Holding Co. v. Twp. of N. Bergen, 150 A.2d 44, 49
(N.J. Super. App. Div. 1959)).
24
Id. at 1043.
25
See, e.g., Kollander v. Kollander, 322 P.3d 897, 903 (Alaska 2014); Burke
v. Maka, 296 P.3d 976, 979 (Alaska 2013); Whittle v. Weber, 243 P.3d 208, 217 (Alaska
2010).
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Furthermore many other courts have specifically noted that laches may not
be used as a sword to obtain affirmative relief but rather only as a defensive shield.26
Indeed, in the specific context of a zoning dispute, a Florida appeals court refused to
permit a similarly positioned property owner to invoke laches.27 There, a property owner
sued the county seeking a declaration that the owner’s building permit was valid after the
county attempted to revoke the permit.28 The owner argued that the county was barred
by laches from revoking the permit, where the county had initially granted the permit a
decade earlier.29 The Florida court rejected this argument, reasoning that because laches
is “a shield to an action,” it had “no application to the case at bar where [the owner was]
seeking to use it as a sword” to compel the county to grant a permit.30
For similar reasons, laches is not available to the Corkerys. The Corkerys
are plaintiffs in this action and are attempting to use laches to compel the Municipality
to grant them a variance (or issue them an occupancy permit without a variance). The
Corkerys are not defendants in a zoning enforcement action, there is nothing in the
record indicating that the Municipality has initiated such an action, and at oral argument
the Municipality disclaimed any intention to do so in the future. Our case law provides
no basis for allowing the Corkerys, the plaintiffs in this suit, to invoke the defense of
26
See, e.g., E.D. Sys. Corp. v. Sw. Bell Tel. Co., 674 F.2d 453, 461 (5th Cir.
1982); Halcon Int’l, Inc. v. Monsanto Austl. Ltd., 446 F.2d 156, 159 (7th Cir. 1971);
United States v. Portrait of Wally, 663 F. Supp. 2d 232, 265 n.24 (S.D.N.Y. 2009);
LaPrade v. Rosinsky, 882 A.2d 192, 198 (D.C. 2005).
27
Corona Props. of Fla., Inc. v. Monroe Cty., 485 So. 2d 1314 (Fla. Dist.
App. 1986).
28
Id. at 1316.
29
Id. at 1315-16.
30
Id. at 1318.
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laches to compel the Municipality to grant a variance, when the Municipality has not and
will not initiate a zoning enforcement action. The superior court therefore did not err in
concluding that the Corkerys cannot invoke laches.
B. The Board Did Not Err In Interpreting The Variance Provision In The
Municipal Code.
The Corkerys next challenge the Board’s interpretation of an Anchorage
Municipal Code provision governing variances, AMC 21.15.010(C), on several bases.
First, they argue that the Board incorrectly interpreted this provision to require that a
variance application meet all seven standards in order for the variance to be granted.
Second, they argue that the Board interpreted standard one, requiring “exceptional or
extraordinary physical circumstances of the subject property,”31 too narrowly so that it
excluded artificial structures on the property. Finally, they argue that the Board erred in
its interpretation of standard two, which requires “exceptional or undue hardship,”32
because the Board afforded insufficient weight to the challenge of conforming their home
to the lot coverage restriction. As noted above, we will interpret all portions of the
variance provision de novo, without deference to the Board’s construction.
1. The variance provision requires an applicant to substantially
meet each of the seven variance standards.
The Corkerys first challenge the Board’s interpretation of
AMC 21.15.010(C). Anchorage Municipal Code 21.15.010 provides the procedure for
obtaining a variance. Subsection (C) provides that a variance application may be
initiated only by the property owner or the owner’s authorized representative and that
any application for a variance “must specify the facts or circumstances that are alleged
31
A.M.C. 21.15.010(C)(1)(a).
32
A.M.C. 21.15.010(C)(1)(b).
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to show that the application substantially meets the following standards.”33 Subsection
(C)(1) then lists the seven standards used to evaluate an application for a variance from
zoning regulations.34 The Board implicitly interpreted subsection (C) to require a
variance applicant to satisfy all seven standards in order for the application to be granted.
The Corkerys argue that the plain text of the provision does not require that a variance
applicant satisfy all of the seven standards but rather only a substantial portion of them.
The Corkerys assert that because the Board found four of the seven standards satisfied,
substantially all of the seven standards are met.
The issue posed by this argument is whether the phrase “substantially
meets” requires a variance application to substantially meet each of the seven standards
or requires the application to meet only a substantial number of the seven standards. The
former reading is more natural. Subsection (C) requires a variance application to
“substantially meet[] the . . . standards” — not to “meet substantially all of the standards”
or “meet a substantial number of the standards.”
This interpretation is supported by two key features of subsection (C).
First, this provision lists each of the seven standards separately, and the final standard,
standard seven, is preceded by the word “and.” The choice of “and,” rather than “or,”
or simply no conjunction, to precede the final standard evinces the Municipal
Assembly’s intent that all seven standards be satisfied in order for a variance to be
granted.35
33
A.M.C. 21.15.010(C).
34
A.M.C. 21.15.010(C)(1).
35
See City & Borough of Juneau v. Thibodeau, 595 P.2d 626, 634 (Alaska
1979) (concluding that both of the variance standards under Juneau code must be
satisfied, based in part on use of the conjunction “and” between standards), overruled on
(continued...)
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Second, the seven factors themselves are partially interdependent.
Standards one and two build on each other, and each appears to assume the satisfaction
of the other. Standard one requires that the property contain “exceptional or
extraordinary physical circumstances.”36 And standard two requires that “[b]ecause of
these physical circumstances, the strict application of [the zoning] code would create
exceptional or undue hardship upon the property owner.”37 Standard two, by referring
to the “physical circumstances” required under the first standard, assumes that the first
standard is satisfied. This assumption is warranted only if all seven standards must be
satisfied in order for a variance to be granted. In other words, as the superior court
noted, the standards are “interrelated, and they do not ‘stand alone’ well,” meaning that
an applicant cannot satisfy the second standard without also satisfying the first.
Although the remaining five standards are not necessarily phrased in an interdependent
manner, the wording of standards one and two demonstrates that an applicant must
satisfy all seven standards.
Another subsection of AMC 21.15.010 underscores the indication of
subsection (C) that all seven standards must be satisfied in order for an applicant to
obtain a variance. Subsection (F), entitled “Approval,” establishes what is required in
order for the Board to approve a variance request. It mandates that the Board “shall
conduct an inquiry designed to find whether all the standards for issuance of the
35
(...continued)
other grounds by State v. Alex, 646 P.2d 203 (Alaska 1982); cf. State v. Fyfe, 370 P.3d
1092, 1100 (Alaska 2016) (noting that the use of conjunction “ ‘or’ is ‘to mark an
alternative such as either this or that’ ” (quoting In re Jesusa V., 85 P.3d 2, 24 (Cal.
2004))).
36
A.M.C. 21.15.010(C)(1)(a).
37
A.M.C. 21.15.010(C)(1)(b) (emphasis added).
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variance have been met.”38 It goes on to require that the Board make sufficient factual
findings to support its decision and that a majority of the Board vote for the variance in
order for it to be granted.39
When construing a municipal ordinance, “we must, whenever possible,
interpret each part or section . . . with every other part or section, so as to create a
harmonious whole.”40 The language of subsection (F) strongly suggests that all of the
standards in subsection (C) must be met in order for the Board to grant the variance. If
the Assembly had intended for only substantially all of the standards to be met, it likely
would have used different language in subsection (F).
The Corkerys protest that it is possible to interpret subsection (F) in a
different fashion. They argue that this subsection’s reference to “all the standards”
simply refers to the three requirements of subsection (C): only the property owner or the
owner’s representative can initiate a variance application; the variance application must
state with particularity the relief sought and the facts; and the application must show that
substantially all of the seven standards are met. Therefore, according to the Corkerys,
subsection (F) does not require that all seven standards be met in order for the Board to
grant a variance request.
However, this argument is contradicted by the text of subsection (C), which
refers to the list of seven standards as the relevant “standards”: “The application must
state with particularity the relief sought and must specify the facts or circumstances that
38
A.M.C. 21.15.010(F)(1) (emphasis added).
39
Id.
40
Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1127 (Alaska 2017)
(quoting State, Dep’t of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Progressive Cas.
Ins. Co., 165 P.3d 624, 629 (Alaska 2007)).
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are alleged to show that the application substantially meets the following standards.”41
It is true that subsection (C) itself is entitled “Standards” and includes the requirements
that the application may be initiated only by the property owner or the owner’s
representative and that the application must state with particularity the relief sought and
the facts. But the plain text of the subsection indicates that the seven separately listed
standards are the relevant standards by which a zoning variance application must be
judged. And we interpret “the same words used twice in the same [ordinance] [to] have
the same meaning.”42 Therefore, to the extent that subsection (F)’s reference to “all the
standards” is ambiguous, we glean from subsection (C) that this phrase is referring to the
list of seven standards. Accordingly, the Corkerys’ argument that subsection (F) does
not indicate that all seven standards must be satisfied is unavailing.
As their final counterargument, the Corkerys claim that if all seven
standards must be satisfied in order for a variance to be granted, then the use of
“substantially” in subsection (C) would be superfluous, contrary to this court’s statutory
interpretation principles.43 However, an interpretation that requires compliance with all
seven standards would not render the word “substantially” superfluous. Under an
interpretation that requires compliance with all seven standards, “substantially” still
carries meaning because it indicates that an application need only substantially meet —
as opposed to completely meet — each of the seven standards. Therefore our
41
A.M.C. 21.15.010(C) (emphasis added).
42
ARCTEC Servs. v. Cummings, 295 P.3d 916, 923 (Alaska 2013) (quoting
Fancyboy v. Alaska Vill. Elec. Coop., Inc., 984 P.2d 1128, 1133 (Alaska 1999)).
43
See State v. Fyfe, 370 P.3d 1092, 1099 (Alaska 2016) (stating the
presumption that a legislative body does not use superfluous words in statutory text and
“intend[s] ‘every word . . . of a statute to have some purpose, force, and effect’ ”
(quoting Adamson v. Municipality of Anchorage, 333 P.3d 5, 16 (Alaska 2014))).
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interpretation does not render the word “substantially” superfluous but instead imbues
it with independent meaning distinct from that of an identical ordinance that does not
contain the word “substantially.”
In sum, the text of subsection (C) and the ordinance as a whole indicates
that all seven standards must be substantially met in order for the Board to grant a
variance request.
2. Only physical features of the applicant’s land constitute
“exceptional or extraordinary physical circumstances of the
subject property” under variance standard one.
The Corkerys next argue that the Board misinterpreted the scope of
variance standard one. Standard one requires that the variance applicant show “[t]here
exist exceptional or extraordinary physical circumstances of the subject property such
as, but not limited to, streams, wetlands, or slope, and such physical circumstances are
not applicable to other land in the same district.”44 The Corkerys contend that they
satisfy this standard because their home was expanded to substantially exceed the lot
coverage limitation long before they purchased it. They reason that because the home
is part of the “property,” circumstances relating to the home, such as excessive lot
coverage, constitute extraordinary circumstances of the “property.” They fault the Board
for requiring them to show extraordinary circumstances relating to the land comprising
their lot.
The Municipality counters that “[t]he plain language” of standard one
requires that the physical circumstances “be features of the ‘land’ ” such as “slope,
streams, and other naturally occurring features.” The Municipality argues that the
Corkerys do not satisfy this standard because “[a] man-made structure on the property
is not a feature of the land.” The Municipality notes our opinion in Thibodeau, where
44
A.M.C. 21.15.010(C)(1)(a).
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we discussed what sort of circumstances warranted a variance under the Juneau variance
provision.45 The provision at issue stated that the Juneau Board of Adjustment could
grant a variance “[w]here hardships and practical difficulties resulting from peculiarities
of a specific property render it difficult to carry out the provisions of [the zoning
code].”46 We interpreted “peculiarities of a specific property” to be limited to those
circumstances that “arise from the physical conditions of the land itself which distinguish
it from other land in the general area.”47 But, as the Municipality implicitly concedes,
our interpretation of the Juneau provision is not binding in this case, where we are asked
to interpret the Anchorage variance provision, whose text differs from that of the Juneau
provision.
Several features of the variance provision indicate that the term “physical
circumstances of the subject property” is limited to physical features of the land itself and
does not include any artificial structures built on the land. First, the plain text of standard
one weighs in favor of this interpretation. In addition to requiring the presence of
“physical circumstances of the subject property,” standard one also requires that the
circumstances “are not applicable to other land in the same [zoning] district.”48 By
referring to circumstances of the “land,” the text suggests that such circumstances are
limited to naturally occurring ones and do not include artificial structures on the lot.
Standard one also provides specific examples of qualifying circumstances,
and these examples demonstrate that such circumstances are limited to naturally
45
See City & Borough of Juneau v. Thibodeau, 595 P.2d 626, 635 (Alaska
1979), overruled on other grounds by State v. Alex, 646 P.2d 203 (Alaska 1982).
46
Id. at 632.
47
Id. at 632, 635 (emphasis added).
48
A.M.C. 21.15.010(C)(1)(a) (emphasis added).
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occurring features of the land itself. Standard one states that qualifying circumstances
may include, “but [are] not limited to, streams, wetlands, or slope.”49 Under the noscitur
a sociis canon of statutory construction,50 the meaning of an ambiguous term “may be
ascertained by reference to the meaning of other words or phrases associated with it.”51
Applying this principle here leads us to conclude that, to the extent the term “physical
circumstances of the subject property” is ambiguous, we can discern from the examples
that follow it that the term refers only to naturally occurring features of the land itself.
Other sections of the variance provision likewise focus on the features of
the lot’s land itself rather than any structures on the land. We must interpret standard one
together with these other sections and in a manner that harmonizes any conflicts.52
Subsection (A) of the variance provision requires that any variance the Board grants
49
Id.
50
We apply this broader canon rather than the ejusdem generis canon because
we recognize that there is some dispute whether the latter can apply where — as here —
a general term is followed by specific examples rather than the reverse. Compare West
v. Municipality of Anchorage, 174 P.3d 224, 228 (Alaska 2007) (“[The ordinance] does
not contain a ‘list of specifics’ preceding the [general phrase]. Instead, only the specific
[term] precedes [the general term]. . . . [T]his lack of a list means that ejusdem generis
does not apply.”), with 2A NORMAN J. SINGER & SHAMBIE SINGER, SUTHERLAND
STATUTORY CONSTRUCTION § 47:17, at 364-70 (7th ed. 2014) (“Ejusdem generis
instructs that, where general words follow specific words . . . , the general words are
construed to embrace only objects similar in nature to those objects enumerated by the
preceding specific words. The doctrine applies equally to the opposite sequence, i.e.,
specific words following general ones . . . .” (footnotes omitted)).
51
Olson v. Olson, 856 P.2d 482, 484 n.2 (Alaska 1993); see also Dawson v.
State, 264 P.3d 851, 858 (Alaska App. 2011) (“Under the rule of statutory construction
known as noscitur a sociis (literally, ‘it is known by its associates’), the meaning of a
word in a statute can be gleaned from the words associated with it.”).
52
See Nelson v. Municipality of Anchorage, 267 P.3d 636, 642 (Alaska 2011).
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must “be the minimum variance that will make possible a reasonable use of the land
equivalent to, but not exceeding, the use of similar land permitted generally in the same
zoning district.”53 And standard seven requires that, in order to grant a variance, the
Board must find that the variance “is the minimum variance that will make possible a
reasonable use of the land.”54
In sum, the plain text of standard one along with other sections of the
variance provision indicate that the required “exceptional or extraordinary physical
circumstances of the subject property” include only physical features of the land itself.
Thus we conclude that standard one was intended to encompass the same scope we
described when interpreting the Juneau variance provision: “Peculiarities of the specific
property sufficient to warrant a grant of a variance must arise from the physical
conditions of the land itself which distinguish it from other land in the general area.”55
The excessive lot coverage of the Corkerys’ home does not constitute such a
circumstance and therefore does not satisfy standard one.56
53
A.M.C. 21.15.010(A) (emphases added).
54
A.M.C. 21.15.010(C)(1)(g) (emphasis added).
55
City & Borough of Juneau v. Thibodeau, 595 P.2d 626, 635 (Alaska 1979),
overruled on other grounds by State v. Alex, 646 P.2d 203 (Alaska 1982).
56
Because we conclude that the Corkerys’ home does not satisfy standard
one, we do not consider their argument with regard to standard two because this standard
is premised on standard one being satisfied. See AMC 21.15.010(C)(1)(b) (requiring that
“[b]ecause of these physical circumstances [described in standard one], the strict
application of this code would create an exceptional or undue hardship upon the property
owner, and would deprive the applicant of rights commonly enjoyed by other properties
in the same [zoning] district under the terms of the zoning ordinance” (emphasis added)).
By virtue of failing to satisfy standard one, the Corkerys also fail to satisfy standard two.
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V. CONCLUSION
We AFFIRM the superior court’s decision affirming the Board’s denial of
the Corkerys’ variance request.
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