Fields v. Kodiak City Council

• Decision Date: 05 June 1981
• Docket Number: No. 4948,4948
• Citation: 628 P.2d 927
• Parties: Duncan FIELDS, Appellant, v. KODIAK CITY COUNCIL, sitting as the Board of Adjustment for the Kodiak Island Borough, Appellee.
• Court: Alaska Supreme Court

Page 927

628 P.2d 927

Duncan FIELDS, Appellant, v. KODIAK CITY COUNCIL, sitting as the Board of Adjustment for the Kodiak Island Borough, Appellee.

No. 4948.

Supreme Court of Alaska.

June 5, 1981.

William D. Artus, Artus & Choquette, P. C., Anchorage, for appellant.

Wev W. Shea and Robert J. Mahoney, Cole, Hartig, Rhodes, Norman & Mahoney, Anchorage, for appellee.

OPINION

Before RABINOWITZ, C. J., CONNOR, and BURKE, JJ., and MOODY and COOKE, Superior Court Judges.

CONNOR, Justice.

This is an appeal from a decision of the Kodiak city council, sitting as a board of adjustment, which denied appellant's request for a variance from a local zoning ordinance. ¹ The superior court ruled that the "clean hands" doctrine precluded appellant from obtaining the relief sought and, alternatively, that the board's denial was supported by substantial evidence. We disagree, and remand the case so that specific findings of fact may be made by the board of adjustment.

In 1972, Duncan Fields purchased the property giving rise to this dispute. At that time the land was improved with a single family residence. The house was nonconforming, but was "grandfathered in" under the local zoning ordinance. Kodiak Island Borough Code (hereafter KIBC) 17.36.010.

Because of an expanding family, Fields decided to increase the size and height of the original structure. In August of 1977, Fields obtained a blank application for a building permit from a Mr. Mulitalo, the borough's zoning administrator. After partially completing the application, Fields presented both the application and the plans for the addition to Mr. Slagle, a city building inspector. Mr. Slagle and Fields then completed the specifications portion of the application together. After completing the application, Fields left the plans with Mr. Slagle and paid the permit fee.

Fields then went back to see Mr. Mulitalo. When reviewing the application, Mulitalo noticed that the plot plan portion of the application was not completed. Although Mulitalo completed the application, there is a dispute as to who supplied the figures reflecting the distance the house and the addition were set back from the front and side property lines. Fields claims Mulitalo used an architect's scale to calculate the setback measurements from a lot plat dated April 3, 1960. Mulitalo contends that Fields provided the setback information. The application states that the left side lot setback is 15 feet when, in fact, it ranges from slightly less than one and one-half feet at the junction of the original house and the addition to approximately two and one-half feet at the rear of the addition. The application correctly states that the front yard setback is seven and one-half feet.

Title 17 of the Kodiak Island Borough Code contains the zoning requirements applicable to Fields' property. Section 17.18.040 requires a front yard setback of twenty-five feet and side yard setbacks of twenty-five feet or ten percent of the width of the lot, whichever is less. Any nonconforming use existing prior to the effective date of the code may be continued; such nonconforming use, however, may not be altered or enlarged in any way. KIBC 17.36.010. Section 17.45.030 gives the planning department discretion to approve permits where the front yard setback is less than twenty-five feet if seventy-five percent of the buildings in the area are also situated less than twenty-five feet from the front lot line. The code does not confer similar discretion on the department with respect to side setbacks. There is some evidence, however, that the department did, in fact, exercise such discretion in the past with respect to side yard setbacks. Fields' lot is approximately forty-four feet wide, so the required side lot setback is about four and four-tenths feet. The actual side setback is approximately one and one-half feet to two and one-half feet.

Because Fields' front yard setback was less than twenty-five feet, it was necessary for Mulitalo to conduct an on-site inspection to determine whether seventy-five percent of the buildings in the area had similar front setbacks. After measuring Fields' front yard and the front yards of several of the houses in the neighborhood, Mulitalo approved the permit. Mulitalo did not measure the side setbacks. At the time of the inspection, there was a fence approximately two and one-half feet from the left side of Fields' existing house. It was thus apparent that the existing sidelot setback was nonconforming, but this assertedly went unnoticed. When he approved the building permit, Mulitalo wrote on its face that no variance was required for the addition.

In December of 1977, Fields began construction of the addition. In April of 1978, Mr. White, a neighboring landowner and a member of the Kodiak city council, informed Mr. Harry Milligan, the borough planning director, that Fields' addition was in violation of the borough's zoning ordinances. On May 31, 1978, Milligan advised Fields that his residence and addition were in violation of the side setback requirement. On June 7, 1978, Fields requested a variance. Fields filed a completion notice on June 14, 1977, stating that the structure had been completed on June 4, 1977. At the time of completion, Fields had incurred approximately $60,000 in construction costs. On June 26, 1978, the borough's planning and zoning commission issued a stop work order. On July 3, 1978, that commission denied Fields' variance request, despite the planning staff's recommendation that a variance be granted. Fields appealed the commission's denial to the board of adjustment. Fields' appeal stayed the stop work order issued on June 26, 1977. AS 29.33.120.

On August 24, 1978, the city council, sitting as the Kodiak board of adjustment, held a hearing to consider Fields' request for a variance. Mr. Artus, Fields' attorney, argued that the four requirements for the granting of a variance under KIBC 17.66.090(B) had been met. Mr. Artus also argued that regardless of whether Fields satisfied the four requirements, a variance should be granted under the doctrine of equitable estoppel. At the close of the hearing, the board voted to deny Fields a variance. The board did not issue findings of fact. White testified at the hearing, but did not vote.

Fields then appealed the board's decision to the superior court. The appeal stayed enforcement proceedings. AS 29.33.130. The borough has not indicated what action, if any, will be taken with respect to the sidelot setback violation.

Fields asked the superior court to hold Kodiak estopped from denying him a variance and, alternatively, to limit any sanction imposed for the violation of the ordinance to $500.00. The superior court did not take additional testimony; its review was based on the record. The court held that Fields was precluded from seeking equitable relief by the "clean hands" doctrine, and that there was substantial evidence to support the board's decision.

An initial observation must be made. The parties have argued at length about whether the board of adjustment was estopped from denying Fields a variance for the setback violation. Fields' estoppel claim is premised upon his detrimental reliance on the validity of the building permit, and on the inspector's written statement on the permit that no variance was required. In the present posture of this case, however, estoppel is not an issue. In the zoning context, estoppel is a defensive claim raised to prevent enforcement of a zoning ordinance. ² 4 A. Rathkopf, The Law of Zoning and Planning § 67-1 (4th ed. 1980). The defense typically applies where a property owner receives a permit that was beyond the power of an administrative officer to grant, the owner detrimentally relies on the validity of the permit, and the local government attempts to revoke the permit and then enforce the ordinance. But "(i)t is not the function of ... (the board of adjustment) to consider matters such as estoppel ... in determining whether a variance should be granted." Carini v. Zoning Board of Appeals, 164 Conn. 169, 319 A.2d 390, 393 (1972), cert. denied, 414 U.S. 831, 94 S.Ct. 64, 38 L.Ed.2d 66 (1973). Nor is the board to decide equitable questions of "clean hands." Rather, the board's power is restricted to that provided by the zoning ordinance and its enabling legislation. City & Borough of Juneau v. Thibodeau, 595 P.2d 626, 635 n.31 (Alaska 1979). Thus the Kodiak board of adjustment's function was to determine whether the requirements for a variance were met and, if so, to grant the variance. See AS 29.33.110; KIBC 17.66.090, 17.69.020.

The only proper issue on appeal is whether the board's denial of the variance is supported by substantial evidence. Galt v. Stanton, 591 P.2d 960, 962-63 (Alaska 1979); Keiner v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963). Questions of estoppel and "clean hands" are not relevant to this question. ³

In order to obtain a variance under the zoning ordinance, Fields was required to establish the following:

"1. That there are exceptional physical circumstances or conditions applicable to the property or to its intended use or development which do not apply generally to the other properties in the same land use district;

2. That the strict application of the provisions of this title would result in practical difficulties or unnecessary hardship;

3. That the granting of the variance will not result in material damage or prejudice to other properties in the vicinity nor be detrimental to the public health, safety or welfare;

4. That the granting of the variance will not be contrary to the objectives of the comprehensive plan."

KIBC 17.66.090(B). The burden was on Fields to provide evidence showing that these conditions were met. City & Borough of Juneau v. Thibodeau, 595 P.2d at 635; Kelly Supply Co. v. City of Anchorage, 516 P.2d 1206, 1211 (Alaska 1973); Boyajian v. Board of Appeals, 6 Mass.App. 283, 374 N.E.2d 1237, 1237-38 (1...