Jackson v. Kenai Peninsula Borough for Use and Benefit of City of Kenai, No. S-1104

• Court: Supreme Court of Alaska (US)
• Writing for the Court: Before RABINOWITZ; MOORE
• Citation: 733 P.2d 1038
• Parties: Robert JACKSON, Appellant, v. KENAI PENINSULA BOROUGH for the Use and Benefit of the CITY OF KENAI, Appellee.
• Docket Number: No. S-1104
• Decision Date: 06 March 1987

Page 1038

733 P.2d 1038 73 A.L.R.4th 857 Robert JACKSON, Appellant,
v.
KENAI PENINSULA BOROUGH for the Use and Benefit of the CITY
OF KENAI, Appellee. No. S-1104. Supreme Court of Alaska. March 6, 1987.

Joseph R. Skrha and Linda MacLean, Drathman & Mysing, Kenai, for appellant.

Timothy J. Rogers, City Atty., Kenai, for appellee.

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

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OPINION

MOORE, Justice.

This appeal poses the question whether a city which has ignored an open violation of a zoning ordinance for 18 years can now enforce it. Robert Jackson operates an automobile repair business in a residential zone in the City of Kenai. He argues that the equitable defenses of estoppel and laches should bar the City of Kenai from enforcing the zoning ordinance against him. The trial court granted summary judgment in favor of the city, concluding that 1) while estoppel might be available, the facts of this case fall short of satisfying the necessary elements of that defense, and 2) laches is not available as a defense in zoning cases. Jackson appeals from this grant of summary judgment and the permanent injunction that followed.

We affirm. Jackson does not present facts which can sustain estoppel against the city. In addition, we agree with the trial court that laches is not generally available against a city in an action to enforce a zoning ordinance.

I.

The parties have stipulated to the following four statements of fact:

1. Robert Jackson operates an automobile repair business at the premises more particularly described as Government Lot 137, Section 34, T6N, R11W, Seward Meridian, Kenai Recording District, State of Alaska.

2. Robert Jackson has operated the automobile repair business continuously at the above location since 1965.

3. Robert Jackson operated the business out of a trailer until 1977 when he built a garage on the above described property and moved the business into the garage.

4. The City of Kenai has never approved a conditional use permit or variance for any automobile repair business at the above described property for Robert Jackson.

The remainder of the facts, viewed in the light most favorable to Jackson, ¹ are gleaned from the affidavits of Jackson and Building Inspector Howard Hackney. In 1965, when Jackson's Sales and Service opened, the business of repairing and selling used cars on the premises violated the residential zoning requirements. Jackson operated the business out of a trailer until 1977 when he applied for and received a building permit for the construction of a large garage which he intended to use in the business. The permit indicated that the garage would be 1008 square feet (28 by 36 feet) and have a total value of $3,500.

During the building of the garage, Hackney inspected the premises and approved the continuation of the construction. During this inspection, the presence of numerous cars, an A-frame for pulling engines, numerous pieces of equipment associated with automobile repair, and other tools indicated that the premises were being used as a commercial repair and used car lot.

The garage was completed in 1977 and by 1978 Jackson was conducting his business full time. From 1979 until the present he has applied for and received an Alaska business license, an Alaska motor vehicle dealer registration certificate, and a certificate of authority to collect Kenai Peninsula Borough sales tax. The correct address for his business was specified in these applications.

For an 18-year period, from 1965 until 1983, Jackson openly operated his business without any complaints from the city that he was in violation of the zoning ordinance. During this period, local officials, including mayors, city managers, city council members, building inspectors and zoning commission members did business with Jackson's Sales and Service or had actual knowledge of the operation and location of the business. In 1972 and 1973, various inspectors were on the premises due to the installation of, and eventual litigation over, city water and sewer lines. During the mid-70's, the city removed junked cars

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from the premises under the city-sponsored program. In 1979, two years after the garage was constructed, Hackney again visited the premises but did not, despite obvious commercial use, notify Jackson of the zoning violation. Since 1980, Jackson's Sales and Service has been under contract to do repair work on vehicles associated with the Kenai Community College. Jackson has never received a complaint from any neighbor about operating the business in this location.

In July, 1983, 18 years after the origin of the business and six years after the construction of the garage, Hackney notified Jackson by mail that the business was in violation of the zoning ordinance. This was the first notice Jackson received concerning the 18-year zoning violation. The City of Kenai eventually sought an injunction directing Jackson to cease and desist operating his automobile repair business. Notwithstanding Jackson's arguments concerning estoppel and laches, the trial court granted summary judgment for the city and issued the permanent injunction.

If Jackson is forced to move his business, he will incur significant expenses that he believes would cause great hardship and possibly financial ruin. He claims he has invested all of this time, effort and savings into the business and the building.

II.

A plaintiff's motion for summary judgment must prove not only every element of his cause of action, it must also "expressly disprove every affirmative defense of the answer." Braund, Inc. v. White, 486 P.2d 50, 54-55 n. 6 (Alaska 1971) quoting Zack, A Primer for Summary Judgment, 11 W. Los Angeles L.Rev. 1 (1970).

Jackson admits that his business violates a valid city zoning ordinance. However, he asserts that the affirmative defenses of equitable estoppel and laches bar the city's enforcement of the ordinance against him. We must determine if the city has met its burden of showing that these defenses are necessarily unavailable to Jackson.

A. Estoppel

The trial judge assumed that the availability of estoppel as a defense against a governmental body in a zoning enforcement action had not been decided in Alaska. He then analyzed case law from Connecticut and Washington and concluded that, although the better view allows a party to invoke the defense of estoppel in appropriate cases, this was not one of them.

Both parties as well as the trial court failed to realize that this court has held that an estoppel defense is available in zoning actions. Municipality of Anchorage v. Schneider, 685 P.2d 94 (Alaska 1984). See Fields v. Kodiak City Council, 628 P.2d 927, 931 n. 3 (Alaska 1981) (dictum ). In Schneider, the property owners, pursuant to a settlement agreement with the municipality, obtained a permit to construct three additional dwelling units on their lot in Eagle River. The municipality then revoked the permit when it discovered that this permit was issued in violation of the recently changed zoning ordinance. The Schneiders filed a motion in superior court to enforce the settlement agreement. Although construction had not yet begun, the Schneiders had spent approximately $24,000 in reliance on the settlement agreement and the erroneously issued building permit. This court rejected the traditional rule under which the government cannot be estopped and held that the municipality was estopped from revoking the permit. Id. at 98.

The Schneider court described four factors that must be considered when a party attempts to invoke an estoppel defense against a municipality in a zoning case.

The general elements of equitable estoppel are (1) assertion of a position by conduct or word, (2) reasonable reliance thereon, and (3) resulting prejudice. Jamison v. Consolidated Utilities, Inc., 576 P.2d 97, 102 (Alaska 1978). A fourth element, most often explicitly stated in promissory estoppel cases, is that the

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estoppel will be enforced only to the extent that justice so requires. Glover v. Sager, 667 P.2d 1198, 1202 (Alaska 1983). We believe that this factor should play an important role when considering estoppel against a municipality.

685 P.2d at 97 (footnote omitted).

Examining the present case in light of the four Schneider factors reveals that summary judgment against Jackson on the estoppel defense was proper.

The first element of estoppel is the assertion of a position by conduct or word. Jackson claims that the following acts constitute the city's assertion by conduct or word that he relied upon in establishing and expanding his business: (1) the city issued him a...