Posted by: Patricia Salkin | September 9, 2014

Alaska Supreme Court Holds Addition to Nonconforming Home was Unlawful as it Violated Shoreline Set-Back Requirements and Finds No Taking and No Due Process Violation

feet from the shore of Big Lake. On March 25, 1988, North American Savings and Loan Association, which preceded Tweedy as lessee, applied for an exemption from the setback requirements then contained in MSBC 16.25.480. The Matanuska–Susitna Borough approved an exemption on the grounds that the house was constructed before January 1, 1987, and North American had no knowledge of violating any setback requirements prior to any construction.

Tweedy began leasing the property on May 11, 1988 and constructed an exterior stairwell addition. In 2010 Tweedy applied to purchase the property and its improvements from the Borough. Because the house was located less than 75 feet from the lakeshore, the sale required a setback exemption. As part of his application Tweedy submitted an as-built drawing showing the dimensions of the structures on the property as of July 20, 2010, showing several structural additions, including the stairwell addition. The Borough informed him that the additions on his property were not compliant with shoreline-setback requirements and the application could not be processed.

Tweedy submitted documentation showing that he constructed the stairwell addition sometime after the first survey was submitted in 1988. He was informed that the stairwell addition was not compliant with MSBC 17.80.060(A)(1), which provided that “a nonconforming structure may not be enlarged or altered in any way unless the alteration or enlargement is otherwise specifically allowed by code,” and MSBC 17.80.060(A)(2), which provided that “a nonconforming structure may not be enlarged or altered vertically or horizontally, in a way which would increase the height, width, depth, area, or volume of the structure except as specifically allowed by current code for similar new structures in that location.” Further, the stairwell was not eligible for a shoreline-setback exemption because it was not constructed before January 1, 1987.

Tweedy appealed to the Board of Adjustment Appeals (“Board”), and the Board affirmed. The Board relied on MSBC 17.80.060(A)(2) and the interpretation that legal nonconforming structures may be maintained, but not enlarged in ways that are prohibited for new structures in the same location. Tweedy appealed to the Superior Court and it affirmed.

On appeal to the Supreme Court, Tweedy’s main argument was that the shoreline-setback requirement in former MSBC 16.25.480 was a subdivision regulation that did not apply to his property because his land was subdivided before the ordinance was enacted. Further, that because no shoreline setback applied to his property when he constructed the stairwell, the current shoreline-setback requirement of MSBC 17.55.020 was improperly applied retroactively to his stairwell addition, and that this retroactive application violated substantive due process or was an unconstitutional taking.

The Supreme Court affirmed and held that the former MSBC 16.25.480 applied to Tweedy’s property when he constructed the stairwell addition. Tweedy had argued that former MSBC 16.25.480, which required a 75–foot setback did not apply because the ordinance was a subdivision or platting regulation, not a zoning ordinance. Tweedy asserted that MSBC 16.25.480 only governed the process of subdividing land and could not apply to construction on property within a preexisting subdivision, especially where the subdivision was platted prior to the regulation’s enactment. The Borough responded that the setback ordinance was a zoning ordinance of general application regardless of where the ordinance was located in the code. The court stated that because former MSBC 16.25.480 applied to all construction on subdivided property regardless of when the subdivision was created, it applied to Tweedy’s property, and Tweedy’s stairwell addition was unlawful when it was constructed.

The court stated that the word “subdivision” also commonly meant “an area of real estate subdivided into individual lots.” Furthermore, subdivision regulations and zoning ordinances are not mutually exclusive categories, and neither the state legislature nor the Borough Assembly had defined a boundary between municipal zoning and subdivision or platting authority. The application of a particular ordinance depends on the language and purpose of that ordinance. Here, it was clear that former MSBC 16.25.480 governed how close to a body of water a property owner could build a structure on subdivided land. Moreover, the argument that the setback was ineffective because it was in a code section titled “Subdivision Regulations” was unavailing. The title of a statutory provision or code section can be an interpretive tool, but the plain language of former MSBC 16.25.480 left no doubt that it is generally applicable to all new construction. Further, requiring municipal ordinances to strictly conform to interpretation of the definition of a code section or ordinance title would be inconsistent with the principle that municipal regulatory power should be liberally construed.

Also, a shoreline-setback ordinance fit within the stated purposes of former MSBC Chapter 16. It could easily be characterized as serving the purposes of providing open space, recreation, and avoiding congestion.

Tweedy also argued that the Superior Court and the Board erred by relying on an 1987 initiative that restored the shoreline setback to 75 feet. The court had recently held zoning by initiative was invalid. The court did not consider whether to apply this holding retroactively. But the court stated that even if the ballot initiative restoring the setback to 75 feet was unlawful, the setback would have been 45 feet under the November 1986 ordinance that the initiative was intended to change. Any expansion of the house would be unlawful under a either a 75–foot or a 45–foot setback.

The court held that the board did not apply MSBC 17.55.020 retroactively. Tweedy had argued that the Board erred by giving MSBC 17.55.020 retroactive application to January 1, 1987, when it was not passed until September 6, 1988. The court stated that this argument was based on the premise that there was no setback provision applicable to Tweedy’s property before the Assembly passed MSBC 17.55.020. But, former MSBC 16.25.480 did apply to Tweedy’s property. The Assembly simply moved the 75–foot setback requirement from MSBC 16.25.480(A) to MSBC 17.55.020(A), using identical language.

The court held that the setback requirement was not unconstitutional as applied to Tweedy’s property. Tweedy had argued that MSBC 17.55.020 was facially unconstitutional and unconstitutional because it did not allow for legal, nonconforming structures. The ordinance violated substantive due process and was an unconstitutional taking of property without compensation. Because the setback provision was in place when Tweedy took possession of the property on May 11, 1988, and because the code did allow for nonconforming structures, the setback provision could not deprive him of any right or property interest.

The court held there was no violation of due process. Tweedy had argued that by not including a provision for nonconforming uses, MSBC 17.55.020 violated substantive due process. The court stated that a legislative body’s zoning decision violates substantive due process if it has no reasonable relationship to a legitimate government purpose. Previously the court had held that a person who has a legal, nonconforming land use has a vested property right that may not be deprived without due process. The setback requirement and the lack of a provision to allow for the expansion of existing nonconforming structures were both reasonably related to legitimate government purposes. The 1987 ballot initiative stated that the purposes of the setback requirement was to maintain fisheries, protect water quality, and maintain public access to water. Prohibiting expansion of nonconforming structures served the same interests.

The court held that there was no taking. The court stated that a taking could only occur where a private property interest exists. When Tweedy took possession of his property on May 11, 1988, there was a 75–foot shoreline-setback provision in effect that prohibited him from expanding the existing structures on his property. Because Tweedy never had any lawful property interest in expanding the structures on his property the court did not consider his claim that the setback provision constituted a taking. Enforcing the setback provision with regard to Tweedy’s stairwell construction did not deprive him of any property interest, thus it was not a taking.

The court held that the board did not err by failing to grant an exemption. The court stated that previously, the 75–foot shoreline-setback requirement applied when Tweedy constructed his stairwell addition. The Borough recognized Tweedy’s house’s legal, nonconforming status in 1988, but the subsequent addition was plainly prohibited by former MSBC 16.25.480. And because no evidence suggested that the stairwell addition was constructed before January 1, 1987, it was not eligible for an exemption under MSBC 17.55.020(C).

Tweedy v Matanuska-Susitna Borough Bd. of Adj. and Appeals, 332 P3d 12 (AL 8/15/2014)

The opinion can be accessed at:

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