Stephan and Sons, Inc. v. Municipality of Anchorage Zoning Bd. of Examiners and Appeals

• Decision Date: 13 July 1984
• Docket Number: No. 7854,7854
• Parties: STEPHAN AND SONS, INC., Appellant, v. MUNICIPALITY OF ANCHORAGE ZONING BOARD OF EXAMINERS AND APPEALS, Appellee.
• Court: Alaska Supreme Court

Page 98

685 P.2d 98

56 A.L.R.4th 761

STEPHAN AND SONS, INC., Appellant, v. MUNICIPALITY OF ANCHORAGE ZONING BOARD OF EXAMINERS AND APPEALS, Appellee.

No. 7854.

Supreme Court of Alaska.

July 13, 1984.

Brian J. Farney and Mary Louise Molenda, Lynch, Farney & Crosby, Anchorage, for appellant.

Margaret J. Rawitz, Asst. Municipal Atty., Allen E. Tesche, Attorney, Jerry Wertzbaugher, Municipal Atty., Anchorage, for appellee.

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

OPINION

MATTHEWS, Justice.

This is an appeal from a superior court decision which upheld a ruling of the Municipality of Anchorage Zoning Board of Examiners and Appeals (the Board). The Board had limited operation of a gravel pit by Stephan & Sons, Inc. (Stephan), appellant, to two separately tracted subparcels totaling thirteen acres of a fifty-three acre parcel. Stephan appeals to this court on the sole issue of whether its authorized "nonconforming use" may be expanded over the entire parcel. We affirm.

I.

In 1969, George and Dixie Winningham were the owners of approximately fifty-three acres of property in Chugiak, Alaska. The property consisted of Government Lots 17 and 20, Township 15 North, Range 1 West, Seward Meridian, and forty acres within the unsubdivided portion of Township 15 North, Range 1 West, Seward Meridian. The Winninghams used a portion of this property in connection with a small gravel excavating business which consisted of doing "small jobs that had to do with water lines and sewer systems." Gravel obtained from the property was used for roads the Winninghams were constructing off the premises, and sales to others were minimal. Equipment used by the Winninghams at that time consisted solely of a "very old dozer, a front-end loader and a truck." Residents of the area described the extent of excavation as "so small it was almost unnoticeable" or "a very modest operation and not very noticeable."

The first areawide zoning ordinance of the former Greater Anchorage Area Borough became effective in April 1969. The ordinance zoned certain land within the Borough, including that of George and Dixie Winningham, as "U: unrestricted." Mineral resource extraction operations were permitted on property zoned "U" only by special exception approved by the planning and zoning commission, or, if such operations existed before the property was zoned, as a nonconforming use. In response to inquiries from the Winninghams, a zoning enforcement officer for the former Greater Anchorage Area Borough advised the Winninghams that they had "grandfather rights" to gravel extraction on their property.

On July 3, 1973, Michael Stephan, a trucker and gravel pit operator, purchased the Winninghams' property for the benefit of appellant Stephan. At the time he purchased the property, Michael Stephan estimated that only two to five acres were used for gravel operations. Stephan extended the gravel pit operation beyond Lots 17 and 20 for the first time in 1974. Stephan also substantially increased the intensity of the operation of the gravel pit in about 1978. One resident described this increase as "alarming." Residents complained to Stephan and expressed concern over safety hazards created by gravel trucks navigating the steep hills of their neighborhood.

On August 9, 1977, the Anchorage Assembly enacted Anchorage Municipal Code (hereafter AMC) § 21.55.090, which required operators of nonconforming pits such as Stephan's to apply for and receive approval of amortization permits and development and restoration plans. Stephan was advised of the need to obtain approval of a restoration plan by letter dated January 12, 1978. Consistent with a staff recommendation that Stephan only had valid nonconforming rights to the thirteen acres within Government Lots 17 and 20, the Planning and Zoning Commission denied approval of Stephan's restoration plan for the entire fifty-three acre property and limited his operations to Lots 17 and 20. This action was appealed to the Zoning Board of Examiners and Appeals, which upheld the Commission's decision.

Stephan appealed the decision of the Board to the superior court. Following briefing and oral argument by counsel, Judge Douglas J. Serdahely issued a "Decision on Appeal" on March 3, 1983 upholding the Board's decision. Stephan appeals to this court arguing that the Board should have approved expansion of the gravel pit operation over the entire fifty-three acres. ¹

II.

AMC § 21.55.010 ² authorizes the continuation of a use of land which does not comply with the applicable zoning law, if that use was lawfully established before the zoning law went into effect. However, this provision states that its purpose is not to encourage the perpetuation of nonconforming uses and "that nonconformities shall not be enlarged upon, expanded, nor extended...." Id. AMC § 21.55.030, which deals specifically with nonconforming uses of land, provides in pertinent part:

Where at the time of the original passage of applicable regulations, lawful use of land existed which would not be permitted by the regulations thereafter imposed by Chapters 21.35 through 21.50, and where such use involves no individual structure other than small or minor accessory buildings, the use may be continued so long as it remains otherwise lawful, provided:

A. No such nonconforming use shall be enlarged or increased nor extended to occupy a greater area of land than was occupied at the effective date of adoption or amendment of the relevant regulations.

B. No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by such use at the effective date of adoption or amendment of the relevant regulations.

(Emphasis added). Thus, the relevant ordinances clearly prohibit the expansion of nonconforming uses. ³

Despite such clear language, courts have allowed uses involving the extraction of minerals to extend beyond the area where excavation has been completed under the "diminishing asset" doctrine. ⁴ The rationale for the "diminishing asset" doctrine is that the very nature of an excavating business is the continuing use of the land, and that this use is what is endorsed by the nonconforming use concept. ⁵ Thus, the doctrine holds that "an owner of a nonconforming use may sometimes be found to have a vested right to use an entire tract even though only a portion of the tract was used when the restrictive ordinance was enacted." 6 R. Powell, The Law of Real Property p 871[iii], at 79C-178 to -179 (Rohan rev. ed. 1979). ⁶ The determining factor is "whether the nature of the initial nonconforming use, in the light of the character and adaptability to such use of the entire parcel, manifestly implies that the entire property was appropriated to such use prior to adoption of the restrictive zoning ordinance." Id. ⁷ The mere intention or hope on the part of the landowner to extend the use over the entire tract is insufficient; the intent must be objectively manifested by the present operations. See Marra v. State, 61 A.D.2d 38, 401 N.Y.S.2d 349, 351 (1978).

We believe that the relevant AMC provisions should be interpreted to allow a gravel pit operator to "expand" its operations past areas actually excavated in 1969 when the predecessor to AMC § 21.55.010 and AMC § 21.55.030 went into effect. Section .010 provides for the continuation of "characteristics of use." Further, AMC § 21.55.090, by providing for the amortization of a mineral resource nonconforming use, clearly contemplates that those uses may continue to some degree. ⁸

Turning to the facts of the present case, we find substantial evidence ⁹ to support the Board's determination that Stephan's gravel pit operation should be limited to Lots 17 and 20. The character of the Winninghams' use of the gravel pit in 1969 in no way manifestly indicated an objective intent to appropriate the entire fifty-three acres. At the inception of the restrictive ordinance, the gravel pit operation was on a very small scale. According to Stephan, it covered only a small area that even four years later had only extended to two...