Posted by: Patricia Salkin | November 15, 2018

AK Supreme Court Laches Did Not Apply to Bar Municipality from Denying Property Owners a Variance

This post was authored by Matthew Loeser, Esq.

As a result of a renovation performed in 1983 by a prior owner, Patrick and Brooke Corkery’s house exceeded the 30% lot coverage limit for their zoning district by over 10%. In 2013, the Corkerys were replacing the home’s roof when they discovered significant rot in the roof and in the wall between the home interior and the attached greenhouse. The Corkerys applied for a construction permit to tear down and rebuild the greenhouse. In 2014, the Municipality issued the Corkerys a conditional permit that allowed them to perform the necessary repairs at their own risk but required them to apply for and obtain a zoning variance before a certificate of occupancy would be issued for the home following the repairs. The variance was required because the footprint of the home exceeded 30% of the lot coverage and therefore violated the R-1A zoning restriction. The Municipality of Anchorage Zoning Board of Examiners and Appeals denied the variance application, finding that three of the seven standards required to grant a variance had not been satisfied. The superior court affirmed the Board’s decision to deny the variance, and the Corkeys appealed.


On appeal, the Corkerys contended that they should be permitted to invoke the doctrine of laches to bar the Municipality from denying them a variance. Specifically, they argued the Municipality’s denial of the building permit was “offensive in nature,” which put the Municipality “in the position of a plaintiff,” and their resulting variance application was therefore a defense against that denial. The court rejected this position and found that case law did not provide any basis for allowing the plaintiff Corkerys to invoke the defense of laches to compel the Municipality to grant a variance, when the Municipality had not initiated a zoning enforcement action. The court therefore rejected this contention, holding that “laches may not be used as a sword to obtain affirmative relief but rather only as a defensive shield.”

The Corkerys next alleged that the Board’s interpretation of an Anchorage Municipal Code provision governing variances, and that the Board incorrectly interpreted this provision to require that a variance application meet all seven standards in order for the variance in order to be granted. The court determined that a plain reading of Subsection (C) required a variance application to “substantially meet the standards” rather than to “meet substantially all of the standards” or “meet a substantial number of the standards.” Further supporting this interpretation was the fact that the standards were interrelated and did not stand alone well. Moreover, under an interpretation that required compliance with all seven standards, the term “substantially” still carried meaning as it indicated that an application need only substantially meet, rather than completely meet, each of the seven standards. Accordingly, the court held the text of subsection (C) and the ordinance as a whole required that all seven standards must be substantially met in order for the Board to grant a variance request.

Lastly, the Corkerys contended that the Board misinterpreted the scope of variance standard one, which required that the variance applicant demonstrate “there exist exceptional or extraordinary physical circumstances of the subject property such as, but not limited to, streams, wetlands, or slope, and such physical circumstances are not applicable to other land in the same district.” The Municipality claimed that the Corkerys failed to satisfy this standard because “a man-made structure on the property is not a feature of the land.” The court found that the plain text of standard one weighed in favor of this interpretation. Here, in addition to requiring the presence of “physical circumstances of the subject property,” standard one also required that the circumstances were not applicable to “other land in the same zoning district.” The court concluded that by referring to circumstances of the “land,” the text indicated that such circumstances were limited to naturally occurring ones and did not include artificial structures on the lot. Accordingly, the court affirmed the superior court’s decision affirming the Board’s denial of the Corkerys’ variance request.

Corkery v Municipality of Anchorage, 426 P. 3d 1078 (AK 9/14/2018)

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