Munroe v. City Council for City of Anchorage
| Decision Date | 28 January 1976 |
| Docket Number | No. 2382,2382 |
| Citation | 545 P.2d 165 |
| Court | Alaska Supreme Court |
| Parties | John MUNROE et al., Appellants, v. CITY COUNCIL FOR the CITY OF ANCHORAGE et al., Appellees. |
William A. Greene, Greene & Bankston, Anchorage, Gene R. Nichol, Legal Intern, for appellants.
John R. Spencer, City Atty., Richard R. Huffman, Asst. City Atty., Anchorage, for appellees.
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR and ERWIN, JJ.
This appeal challenges the superior court's affirmance of the Anchorage Board of Adjustment's denial of Munroe's application for a special exception to the applicable zoning ordinance for the construction of a planned unit development (PUD). Because of events which have occurred subsequent to the judgment of the superior court, this appeal has been rendered moot.
Through the center of Anchorage, the City has developed a greenbelt park system which surrounds Chester Creek and the Westchester Lagoon. This greenbelt has become the focal point of Anchorage's expanding park system and provides boating facilities, bike and ski trails, and other amenities often lacking in an urbanized environment. The neighborhood which surrounds Westchester Lagoon is a residential area comprised largely of single family dwellings, interspersed with duplexes. The area is zoned R-2D 1 under the Greater Anchorage Area Borough Zoning Ordinance.
John Munroe and Stanley Thompson owned 2 two triangular shaped pieces of land, one of which abutted Westchester Lagoon. 3 The two lots, together, contained approximately 4.61 acres of land, all of which was zoned R-2D. On April 29, 1974, pursuant to GAAB Ord. 1-69, Sec. 21-5(C)(4)(h) (see footnote 1) and GAAB Ord. 1-69, Sec. 21-6(M)(9), 4 Munroe and Thompson applied to the Greater Anchorage Area Borough Planning and Zoning Commission for final approval of a special exception to the applicable zoning ordinance for the construction of a planned unit development (PUD) on their combined properties.
The developers proposed to construct 50, two-story, one-, two-, and three-bedroom, luxury townhouse units to be sold as condominiums at prices between $80,000 and $100,000 each. The townhouses were to be of a 'common-wall' design and clustered in groups of two to give units. At the Planning and Zoning Commission hearing held on May 29, 1974, 11 residents of the neighborhood known as the Inlet-View South Addition area, which includes the area surrounding Westchester Lagoon, spoke in opposition to the proposed development; a hand count indicated that 50 residents had come to the hearing to oppose the Munroe and Thompson development. After discussion and comment, the Planning and Zoning Commission granted final approval for a special exception for the construction of a PUD subject to 12 conditions, restrictions, and limitations.
On June 5, 1974, approximately 183 residents of the Inlet-View South Addition area filed a notice of appeal from the decision of the Planning and oning Commission to the Board of Adjustment of the City of Anchorage. 5 A hearing on the residents' appeal, before the Board of Adjustment, was set for the evening of July 2, 1974. Although the meeting was originally scheduled for the City Council chambers, an overflow crowd of some 300 people necessitated its removal to the Inlet-View School. At the public hearing, numerous residents spoke in opposition to the Munroe and Thompson development. At the conclusion of the hearing, the Board of Adjustment voted to grant the residents' appeal and deny the application for the special exception previously granted Munroe and Thompson by the Planning and Zoning Commission. The Board of Adjustment stated, as the basis for its granting of the appeal, the following:
. . . (T)he common-wall design of the townhouses is out of character with surrounding free-standing single-family dwellings within the immediate community and that buildings within the PUD as proposed are substantially out of character with dwellings in the immediate area (and that) the uses . . . would be harmful to public health, safety, convenience, and welfare.
On July 18, 1975, Munroe and Thompson filed notices of appeal from the decision of the Board of Adjustment in superior court. The developers' appeal rested on their contention that the Board of Adjustment had improperly applied the zoning ordinance standards concerning the review of applications for special exceptions and their contention that the decision by the Board of Adjustment was improperly based on the vocal community disapproval of the development expressed prior to and at the July 2 public hearing of the Board. Following oral arguments by Munroe and Thompson, by the City of Anchorage, and by amicus curiae, Westchester Community, Inc., a community group, the superior court issued a written memorandum of its decision on October 8, 1974, denying the appeal. The superior court found that the Board of Adjustment had correctly applied the criteria for review of special exception applications and that the Board's decision was supported by substantial evidence. Additionally, the court found that Munroe and Thompson had not been denied due process of law or equal protection of the laws during the course of the hearing conducted by the Board; in so finding, the superior court rejected appellants' claim that the Board had been improperly biased or prejudiced by the community opposition.
From the decision of the superior court on October 8, 1974, Munroe and Thompson have appealed to this court seeking reversal of the judgment below, reversal of the superior court's awarding of attorney's fees of $1,500 to the City, compensation for damages incurred as a result of the arbitrary and capricious action of the Board of Adjustment, and their own costs and attorney's fees.
Subsequent to the decision of the superior court and the notice of appeal to this court, both parcels of land owned by Munroe and Thompson underwent substantial alteration. In November, 1974, the developers applied to the Greater Anchorage Area Borough Platting Authority for approval of a re-plat 6 of the same parcels for which they had requested a special exception for the construction of a PUD. In their application, Munroe and Thompson requested that the two parcels be re-platted in order:
to re-subdivide 2 blocks (1 lot, 1 tract) into 2 blocks, 22 lots containing approximately 4.61 acres.
The re-plat was the first step in a plan by the developers to construct duplex housing units on the property which would comply with the R-2D zoning ordinance provisions. At the December 9, 1974, hearing of the Platting Authority, the developers' application for re-platting was granted.
On January 10, 1975, the City of Anchorage filed a complaint against Tract A, Block 47 of the South Addition to the Original Townsite of Anchorage (the parcel owned by Thompson) to take such property by eminent domain for park purposes. 7 Munroe and Thompson challenged the city's authority and necessity for the taking of the property; after a hearing before Judge Victor Carlson, the superior court ruled that the city had both the authority and the necessity to take the property for park purposes. That parcel of land has been added to the Westchester Lagoon greenbelt. 8 During the early summer of 1975 Munroe and Thompson commenced construction of duplex condominiums on the remaining parcel of land. Construction is nearing completion at this time.
Munroe and Thompson have pursued an appeal to this court alleging that the superior court erred in its application of the GAAB ordinances governing the review of an application for a special exception, that the Board of Adjustment abused its powers by denying their application for a special exception in an attempt to 'freeze' the value of their land in the subsequent eminent domain proceeding, that the findings of the Board of Adjustment that the proposed PUD was 'out of character' with the surrounding neighborhood were not supported by substantial evidence, and that the superior court erred in awarding attorney's fees to the city. Because of the events and alterations to the property which have occurred subsequent to the judgment of the superior court, the central issues in this appeal have been rendered moot.
Both parcels of land for which Munroe and Thompson originally sought a special exception for the construction of a PUD have been so substantially altered and changed that there is now no possibility of constructing the proposed planned unit development. Of the two parcels involved, both have been re-platted; one has been taken by eminent domain for park purposes, the other has been subdivided and developed with duplex condominiums. Thus, even if this court were to reverse the judgment of the superior court, the proposed planned unit development could not be constructed. The granting of the special exception, at this time, would be of no value. This court has held that advisory opinions are to be avoided and that cases which do not constitute actual cases or controversies are not properly considered. In re GMB, 483 P.2d 1006, 1008 (Alaska 1971). 9
Munroe and Thompson have presented two arguments in support of their contention that this appeal is not moot. First, they suggest that the propriety of the denial of the application for a special exception is not moot because a determination on the merits, by this court, may be dispositive of the superior court's award of attorney's fees to the city. 10 Under Rule 82, Alaska R.Civ.P., Alaska provides a mechanism for awarding attorney's fees to the prevailing party in every case. For a variety of reasons, lawsuits often become moot between trial and appeal. We reject the contention that this court should review mooted issues of law solely to provide a means by which the trial court's award of attorney's fees can be contested. 11 To do so would vitiate the mootness doctrine as to all such cases mooted...
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