The sole issue of this case is the application of a preference right for the purchase of state land under the Alaska Land Act as amended by the legislature in 1984. The pertinent provision as codified in AS 38.05.035(f) provides in relevant part:
The director shall grant a preference right to the purchase or lease without competitive bid of up to five acres of state land to an individual who has erected a building on the land and used the land for bona fide business purposes for five or more years under a federal permit or without the need for a permit and, after selection by the state, under a state use permit or lease, if the business produced no less than 25 percent of the total income of the applicant for the five years preceding the application to purchase or lease the land.
Melvin Gillis, a professional sport hunting and fishing guide, obtained a 25-year lease of five acres of state land in April 1989. Gillis built a lodge on the land, and the operation of the lodge and his guiding business provided his principal source of income. In 2005 the Department of Natural Resources transferred the subject land and lease to the Aleutians East Borough. Later that year Gillis offered to purchase the land. The Borough rejected his offer but proposed a new lease agreement. Gillis did not execute the lease, and in 2007 claimed he was eligible to purchase the land under the above cited statute. The Borough maintained Gillis did not qualify for a preference right because his lease commenced after the federal government transferred the land to the state. In 2008 Gillis reiterated his preference-right claim.
The Borough then filed a declaratory judgment action. Gillis counterclaimed against the Borough, filed a third-party complaint against DNR, and moved for partial summary judgment against both parties. The Borough and DNR cross-moved for summary judgment. At issue was whether subsection .035(f) required an applicant to enter land while it was under federal ownership as a condition of the preference right. The court entered summary judgment in favor of the Borough and DNR.
The Supreme Court first determines that the plain language of the statute requires the applicant to have entered the land while it was under federal ownership to qualify for the preference. The critical language is: “erected a building on the land and used the land . . . under a federal permit or without the need for a permit and, after selection by the state, under a state use permit or lease.” The argument by Gillis that interpreting the statute in pari materia with the Alaska Land Act’s other preference-right provisions requires granting a preference is rejected. As are arguments based on legislative history and intent, DNR’s Regulations and Decisions, and absurd results. The superior court’s interpretation of the statute and its summary judgment decision are affirmed.
This is a broken construction case. Yvan Safar as owner of Safar Construction, Inc. (Safar) contracted with developer Per Bjornn-Roli as owner of Norway Estates, LLC (Northway) to construct six units of a twelve unit condominium project in Girdwood for a “not to exceed” proce of $2,990,434. Wells Fargo Bank agreed to loan up to $3.3 million to Norway to finance the project. The loan funds were all disbursed, but the units were not complete. Safar contended that the Wells Fargo loan officer promised that he would be reimbursed if he continued construction using his personal funds. The loan officer denied making any such promise. Safar alleged damages of at least $500,000 for personal funds advanced to continue the project on a theory of promissory estoppel. After a bench trial, the superior court found that Wells Fargo made no enforceable promise to Safar to reimburse him, dismissed his claims with prejudice, and entered judgment for Wells Fargo.
The case turns on whether it meets the requirements for promissory estoppel. The Supreme Court points out that the first element of promissory estoppel is an “actual promise” that induced action or forbearance. Since the superior court found that this element was not met, the Supreme Court reviews the superior court’s findings of fact for clear error, giving particular deference to those based primarily on oral testimony. Of particular import was the finding that Safar could not articulate the details of the alleged commitment such as “the amount of the loan, the terms of repayment, the security, the interest rate, or even if the bank’s supposed commitment was a loan or a gift. Finding no clear error, the superior court is affirmed.
This is the third time this prescriptive easement case has been to the Supreme Court. In 1978 Thomas Price purchased an agricultural interest from the State of Alaska in land located at the head of Kachemak Bay. A group of snowmachiners had used a seismic trail that crosses the land for a number of years. After Price posted “No Trespassing” signs on his property in the winter of 1998-99, Eastham and almost another one hundred snowmachiners sued Price alleging that they had established an easement by prescription before Price posted the signs. The earlier appeals established that the snowmachiners had a prescriptive easement but struggled with its size and who was entitled to use it.
In the current appeal the superior court had determined that the public entitled to use the easement included not only the snowmobilers but four-wheelers, hikers, persons training their sled dogs, occupants of residences along the trail, hunters, and berry pickers. The Supreme Court rejects this expansion. It points out that although the prescriptive easement has been determined to be public, that does not mean that the public can use it other than for snowmobile use. The other uses would depend upon independently proving the right to a prescriptive easement or obtaining the permission of the land owner.
Another issues was whether the uses of the easement, particularly volume, seasonality, and width, had unduly expanded beyond the use during the original prescriptive period. In
reviewing these issues, the Supreme Court sets forth the general principle that although the use made of a prescriptive easement may evolve beyond the original prescriptive uses, new uses
cannot substantially increase the burden on the servient estate or change the nature and character of the easement’s original use.
The Supreme Court affirmed the superior court’s determination that the volume of showmachine traffic had not unreasonably increased. It remanded for a determination of seasonal use rejecting the superior court’s not doing so because of possible impact on nonsnowmachine users. It affirmed the superior court’s determination that the snowmachiners reasonable use of the trail included marking and maintaining it.
The width of the easement continues to be an issue. The only uncontested evidence of width during the prescriptive period is the eight feet necessary for one lane of snowmachine travel. I f the easement’s use has evolved to require widening the path, the superior court on remand must make specific findings as to the reasonableness and necessity of increasing the width of the easement. Finally, the Supreme Court rules that AS 09.45.052(d) vesting public access prescriptive easements in the state or a political subdivision of it does not apply since it was enacted in 2003 after the prescriptive easement here was perfected.
Leta Trask owns a house in the Ketchikan Gateway Borough and wrote a letter to the Borough asking if she would need a permit to refresh and modify a painted Biblical message on her roof. The Borough responded that she did not need a permit because the message was not a sign as defined by the Borough Code. The painted message read: “DO UNTO OTHERS…:BY YOUR DEEDS YOU’RE KNOWN: LOVE YOUR NEIGHBOR: YOU’RE WELCOME.” The message being modified resulted from a dispute with her uphill neighbors as set forth in Lybrand v. Trask, 31 P.3d 801.
After some of Trask’s neighbors complained, the Borough sent her several letters informing her that the message violated the Borough Code and instructed her to remove it. She did not do so and the Borough filed a superior court complaint seeking to enjoin her from displaying the message and seeking a $200 fine. Trask counterclaimed alleging that as applied to her the ordinance violated her constitutional right to free speech. She also sought relief under 42 U.S.C. § 1983 as being deprived of constitutional rights by a government entity.
Following motion practice, the superior court dismissed the Borough’s enforcement action finding the roof message was not a sign under the Borough Code. It also ruled that Trask lacked standing to challenge the constitutionality of the Code provision. The § 1983 action was dismissed as the superior court concluded that there was no constitutional violation and Trask did not have standing to litigate the constitutionality of the ordinance. Trask was ruled the prevailing party and awarded 20% of her actual reasonable attorney’s fees under Rule 82(b)(2). She appealed the superior court’s dismissal of her § 1983 claim and its decision to not award enhanced attorney’s fees.
The Supreme Court finds that Trask has standing to bring her § 1983 claim citing with approval its past holding “…that an identifiable trifle is enough for standing to fight out a question of principle.” It further held that it was error to dismiss her § 1983 claim as she had alleged sufficient violation of her First Amendment rights to survive a motion to dismiss. The Rule 82 attorney’s fees award is vacated, and the Supreme Court points out that she may be entitled to attorney’s fees under federal statute if she prevails on her § 1983 claim on remand.
This case is the fifth Supreme Court case in the last fifteen years by “frequent flyer” Frank Griswold against the City of Homer on land use and zoning. In it he filed a notice of appeal of the Homer Advisory Planning Commission’s grant of a conditional-use permit to a mariculture association to construct an “8,373 square foot two-story structure using the existing platform at 3851 Homer Spit Road.
The city clerk rejected his appeal for lack of standing because Griswold did not show that the permitted action would have an adverse effect on the use, enjoyment, or value of his property, and because Griswold’s interests were not distinct from those of the general public. Griswold appealed to the superior court which affirmed. On May 14, 2009, the superior court issued its “Decision of Appeal.” On December 16, 2009 the superior court issued “Final Judgment” dismissing the case and awarding attorney’s fees and costs. On December 23, 2009 Griswold filed his appeal to the Supreme Court.
The Supreme Court discusses in some detail the provisions of the Homer City Code in relation to the rules on standing and finds them in compliance. Perhaps more important to appellate practice is the finding that the appeal to the Supreme Court was not timely under Appellate Rule 204(a)(1) requiring the appeal to be filed within thirty days of the judgment appealed from. When the superior court is sitting as an intermediate appellate court, Appellate Rule 507(a) applies which states that “[t]he opinion of the appellate court…shall constitute its judgment.” The Supreme Court further points out that Civil Rule 58 regarding judgments does not apply since the superior court is not acting as a trial court.
The appeal is allowed by relaxing the rule primarily because, even though experienced, Griswold is still a pro se litigant. The Court further states that “[T]he application of Appellate Rule 204(a)(1) in the present case might have confused even a law-trained individual.” (We have been warned.)