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KODIAK TWNST BK 8 LT 6A,B,C - Parking Plan Review (3)KODIAK IS BORO•II To: Joel Bolger, From: Bob Scholz Community Date: July 8, 1992 Re: MEMORANDUM orough Attorney issociate Planner telopment Department Abatement of Zoning Violations This memo notifies you that properties, about which you abated as confirmed by site Legal Address Lot 33, Bk. 6, Aleutian Homes Lot 6A, 6B, 6C, Bk.8, Kodiak Townsite j Lot 4A, Bk. 7, Miller Point First Addition zoning violations on the following were previously consulted, have been visits July 7 and 81, 1992: Owner 1Disposition 217 Willow Cr. Gatson i Illllegal Dwelling Vacated i 1 219 Mill Bay Rd. LeDoux Parking Lot Installed 3438 Antone Way Clarion Co. Fishing Gear and Bldg. Materials Removed cc: Linda Freed, Department Director � Property Files JAMIN, JOEL H. SOLGER• C. WALTER EBELL DUNCAN S. FIELDS DIANNA P. GENTRY MATTHEW 0, JAMIN WALTER W. MASON• JANE E. SAUER ALAN L. SCHMITT MICHAEL C. SCIACCA• pMITtEO TO AtASRA ANO WASNINOTON DANS ALL OT.+¢AS ADMRTLO TO ALASKA OAP Mr. Robert F. Scholze Zoning Enforcement Officer KODIAK ISLAND BOROUGH - 710 Mill Bay Road Kodiak, AK 99615 EBELL, BOLGER & GENTRY A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET KODIAK, ALASKA 99615 TELEPHONE: (907) 486-6024 FACSIMILE: (907) 486-6112 REPLY TO KODIAK OFFICE July 1, 1992 Re: Kodiak Island Borough v. Kurt M. and Gabrielle LeDoux Our File No. 4095-87 ANCHORAGE OFFICE: 1200 1 STREET. SUITE 704 ANCHORAGE, ALASKA 99501 TELEPHONE ANO FAX (907) 2786100 SEATTLE OFFICE: 300 MUTUAL LIFE BUILDING 605 FIRST AVENUE SEATTLE. WASHINGTON 98104 TELEPHONE: (206) 822-7634 rAc5ipILE: (206) 623-7521 Dear Bob: I just wanted to remind you that the court order requiring Kurt and Gabrielle LeDoux to discontinue the use of the Lower Mill Bay residence as a professional office building:until they provide a parking lot is now in effect. I told Ben Hancock, the attorney for Mr. and MrsJ LeDoux, that we would inspect the property sometime after July 1, 1992 to determine compliance. Please let me know if the lot has been constructed or if further enforcement action is necessary. 1 Sincerely yours, JHB:cat - cc: Ms. Linda Freed, Community Development Director The Honorable Jerome Selby, Mayor Mr. Jack McFarland, Presiding Officer Kodiak Island Borough Assembly 4095\87L.017 ' JUL - z:992 11 COMMUNITY DEVELOPMENT DEPARTMENT JOEL H. SOLGER• C. WALTER E6ELL} DUNCAN S. FIELDS DIANNA R. GENTRY MATTHEW D. JAMIN WALTER W. MASON• JANE E. SAUER ALAN L. SCHMITT MICHAEL C. SCIACCA• O»iTTtO To AI.A *A ASO WASHINGTON SASS t- OTNCAS AOVR740 TO ALASKA OAR L. Ben Hancock, Esq. P.O. Box 481 Kodiak, AK 99615 JAMIN, EBELL, BOLGER & GENTRY A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET KODIAK, ALASKA 99615 TELEPHONE: (907) 486-6024 FACSIMILE: (907) 486-6112 REPLY TO KODIAK OFFICE May 6, 1992 Re: Kodiak Island Borough v. Kurt M. and Gabrielle LeDoux Our File No. 4095-87 Dear Ben Enclosed is an Acknowledgment of Partial Satisfaction of Judgment. ANCHORAGE OFFICE: 1200 I STREET. SUITE 704 ANCHORAGE. ALASKA 99501 TELEPHONE AND FAx (907) 276.0100 SEATTLE OFFICE: 300 MUTUAL LIFE BUILDING 605 FIRST AVENUE SEATTLE. WASHINGTON 93104 TELEPHONE: (2O6) 622-7634 rAGSIMALC: (2O6) 623-7521 Thank you again for your assistance in resolving this matter. Feel free to call if you have any questions. Sincerely yours, JAMIN, FRRTJ,, BOLGER & GENTRY Joel H. Bolger JHB:tah Enclosure cc: "Linda Freed, Community Development Director The Honorable Jerome Selby, Mayor Mr. Jack McFarland, Presiding Officer Kodiak Island Borough Assembly 87L.615 JAM(N, JOEL H. eOLGER• C. WALTER EBELL• DUNCAN S. FIELDS DIANNA R. GENTRY MATTHEW 0. JAMIN WALTER W. MASON• JANE E. SAUER ALAN L. SCHMITT MICHAEL C. SCIACCA• •ADMITTED TO ALASKA ARO WASHINGTON BARS ALL OTHERS ADMITTED TO ALASKA BAR VIA HAND DELIVERY Linda Freed, Director Community Development Department Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 EBELL, BOLGER & GENTRY A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET KODIAK, ALASKA 99615 TELEPHONE: (907) 489.6024 FACSIMILE: (907) 486-6112 REPLY TO KODIAK OFFICE May 4, 1992 Re: LeDoux v. Kodiak Island Borough Our File No. 4095-87 ANCHORAGE OFFICE: 1200 1 STREET. SUITE 704 ANCHORAGE, ALASKA 99501 TELEPHONE ANO FAX (907) 278.6100 SEATTLE OFFICE: 300 MUTUAL LIFE BUILDING 605 FINBT AVENUE SEATTLE. WASHINGTON 96104 TELEPHONE: (206) 622-7634 FACSIMILE. (2061 623-7521 Dear Linda Please find enclosed a check in the amount of $5,307.05 representing the attorney's fees and costs granted to the Kodiak Island Borough in this case. We have confirmed to Mr. LeDoux that we will inspect his property on or about July 1, 1992 in order to determine compliance with the court's injunction requiring the construction of a parking lot. Do not hesitate to contact me if you have any questions. Sincerely yours, JAMIN, EBELL, BOLGER & GENTRY JHB:tah Enclosure cc: Honorable Jerome Selby, Mayor Mr. Jack McFarland, Presiding Officer Kodiak Island Borough Assembly 4045\87L.015 GABRIELLE R. LEDOUX 219 UPPER MILL BAY KODIAK, AK 99615 15 »! National tits /0QX CASH MANAGEMENT EVE N cl 25 00 }571:00110511066411• 01123 • 4 JOEL H. 9OLGER• C. WALTER EBELL• DUNCAN 5. FIELDS DIANNA R. GENTRY MATTHEW D. JAMIN WALTER W. MASON. JANE E. SAUER ALAN L. SCHMITT MICHAEL C. SCIACCA• 44547TE0 79 ALAS** Tw wAS«aYON SAGS O 474 T 4CRS 401417750 70 4145114 9411 L. Ben Hancock, Esq. P.O. Box 481 Kodiak, AK 99615 JAMIN, EBELL, BOLGER & GENTRY A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET KODIAK, ALASKA 99615 TELEPHONE: (907) 466-6024 FACSIMILE: (907) 486-6112 REPLY TO KODIAK OFFICE April 9, 1992 Re: Kodiak Island Borough v. Kurt M. LeDoux and Gabrielle LeDoua Our File No. 4095-87 Dear Ben: ANCHORAGE OFFICE: 1200 1 STREET, SUIYE 704 ANCHORAGE. ALASKA 99501 TELEPHONE AND PAX (907)27K-6100 SEATTLE OFFICE: 300 MUTUAL LIFE BUILDING 605 FIRST AVENUE SEATTLE. WASHINGTON 96104 TELEPHONE: (208) 622-7634 FACSIMILE: (206) 623.7521 I am writing in response to your question concerning the terms for immediate resolution of this case. The borough will require that Mx. and Mrs. T-Doux immediately epnstiuct a parking lot on the property (within the next 30 days) or discontinue the use of the property as a professional office building. In addition, the money judgment in this case is approximately $5,307.05 as of May 1; 1992. The borough would be willing to accept installment payments of $1,000 per month, beginning May 1, 1992, including interest at the rate of 10.5% per annum, evidenced by a promissory note and secured by a deed of trust against the property. Please recall that Mr. LeDoux filed a separate appeal against the City of lddiak with 15xpet.t to an alternate parking location. I recommend that you contact Mel Stephens directly for resolution of that matter. Sincerely yours, JAMIN, FRFTSti BOLGER & GENTRY Joel H. Bolger JHd3:tah cc Melvin M. Stephens, II, Esq. ✓Linda Freed, Community Development Director Honorable Jerome Selby, Mayor Mr. Jack McFarland, Presiding Officer Kodiak Nand Borough Assembly 4095\671..013 LTY 0EVEC_ DEPARTMEIT MATTHEW D. JAMIN C. WALTER EBELL• JOEL H. BOLGER* DIANNA R. GENTRY ALAN L. SCHMITT WALTER W. MASON•• DUNCAN S. FIELDS MICHAEL ARAUJO AA0m0-IFIII TO ALASKA AND WASH NGTON OARS •4OMITTBD TO WASHINGTON BAR ALL OTNBPS ARMITTE4 Tp ALASKA SAP JAMIN, EBELL, BOLGER & GENTRY A PROFE651ONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET KODIAK, ALASKA 99615 FACSIMILE: (907) 486-6112 TELEPHONE: (907) 466-6024 REPLY TO KODIAK OFFICE March 24, 1992 ( Linda Freed, Director Community Development Department Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Re: LeDoux v. Kodiak Island Borough Our File No. 4095-87 Dear Linda: SEATTLE OFFICE: 300 MUTUAL LIFE BUILDING 6O5 FIRST AVENUE SEATTLE, WASHINGTON 96104 FACSIMILE: (206) 6237521 TELEPHONE: (206) 6227634 Enclosed is the Opinion of the supreme court affirming the injunction granted to the Kodiak Island Borough which requires Mr. and Mrs. LeDoux to provide off-street parking at their professional office building following a final decision on their alternate parking location. As I understand it, the alternate parking location application is also currently on appeal to the Alaska Supreme Court. As noted, the supreme court awarded to the borough $750 in attorney's fees and such additional court costs as may be granted under the Rules of Appellate Procedure. I will proceed to execute on Mr.iand Mrs. LeDoux's bank accounts in order to collect the original attorney's fees and costs award plus the amounts we have been awarded by the Alaska Supreme Court. Do not hesitate to contact me if you have any questions. Sincerely yours, JAMIN, EBELL, BOLGER & GENTRY oel H. Bolger JHB:tah Enclosure cc: Honorable Jerome Selby, Mayor Mr. Jar* McFarland, Presiding Officer Kodiak Island Borough Assembly 4095\B7L.012 MAR 251992 COMMUNil'DEVELOPMENT DEPARTMENT Notice: This is subject to formal correction before publication in the Pacific Reporter. Readers are requested to bring itypographical or other formal errors to the attention of the Clerk of the }appellate Courts, 303 K Street, Anchorage, Alaska 99501, in order that corrections may be made prior to permanent publication. THE SUPREME COURT OF THE STATE OF ALASKA u !Urf:7iiv MAR 2 3 $_O;,;AK. ALASKA KURT M. LeDOUX and ) GABRIELLE LeDOUX, ) Supreme Court No. S-3997 ) Appellants, ) Trial Court No. 3K0-89-210 Civil v. ) ) KODIAK ISLAND BOROUGH, ) ) Appellee. ) [No. 3822 - March 20, 1992] OPINION Appeal from the Superior Court of the State of Alaska, Third Judicial District, Kodiak, Roy H. Madsen, Judge. Appearances: Kurt M. LeDoux, LeDoux and LeDoux, Kodiak, for Appellants. Joel H. Bolger, Jamin, Ebell, Bolger & Gentry, Kodiak, for Appellee. Before: Rabinowitz, Chief Justice, Burke, Matthews, Compton, and Moore, Justices. I PER CURIAM INTRODUCTION Appellee, Kodiak Island Borough (Borough), sued the LeDouxs to enjoin them from using their property as a professional office building in violation of the Borough's minimum parking CONAIUD I Y DE E OPMENT regulations. The trial court granted the Borough's summary judgment motion. The LeDouxs appeal. We affirm. II. FACTS Joel and Carol Davis owned property in Kodiak. The property was zoned for multi -family residential use. The LeDouxs wanted to buy the property and use it as a combination law office and apartment. In October 1987, the Davises applied for a zoning variance to use the property as a professional office and upstairs apartment. The Borough accepted the variance application subject to submittal of a parking plan.' The LeDouxs provided the Borough with a parking plan that included eight off-street parking spaces on the property. In November 1987, the Borough approved the variance. In December 1987, the LeDouxs bought the property from the Davises. The LeDouxs have never provided the off-street parking. In May 1989, the Borough sued the LeDouxs to enjoin them from using the property as a professional office building. In July 1989, the Borough moved for summary judgment. In November 1989, the LeDouxs applied to the Borough for an alternative parking location variance. In December 1989, the Borough denied the LeDouxs' alternative parking location variance application. The LeDouxs moved to stay the Borough's injunction action pending 1 KtBC 17.57.020 requires professional office buildings to provide one parking space for each 300 square feet of gross floor area and requires single- family dwellings. to provide two parking spaces for each unit. r. 3822 administrative and judicial review of the LeDouxs'iapplication for 1 alternative parking. On January 12, 1990, the trial court implicitly denied the LeDouxs' motion to stay by granting the Borough's summary judgment motion. However, the trial court's order allows the LeDouxs to continue using the property as a professional office building pending a final decision on the LeDouxs' application for an alternative parking variance. The trial court also awarded $3,350 in Civil Rule 82 attorney's fees to the Borough. The Borough expended $4,547.50 in attorney's fees. The LeDouxs appeal both the trial court's grant of summary judgment and award of attorney's fees. III. DISCUSSION A. Did the trial court err in granting the remedy of an injunction? The LeDouxs argue a court can only grant an injunction t if two requirements are satisfied: 1) there is no adequate remedy at law; and 2) harm will result if the injunctionlis not granted. The LeDouxs argue that the trial court improperly granted the injunction because in the present case neither; requirement is satisfied. As for the first requirement, the LeDouxs argue their administrative attempt to seek alternative parking approval is an adequate remedy at law. As for the second requirement, the LeDouxs argue there is no harm to the public because the LeDouxs park their cars in a parking lot across the street from their office. 3822 The Borough cites AS 29.40.190(a) which provides that "[a]n action to enjoin a [zoning] violation may be brought not— withstanding the availability of any other remedy." The Borough argues since the statute authorizes an injunction, the Borough is not required to show harm or the lack of an adequate legal remedy. As noted above, AS 29.40.190(a) authorizes injunctive relief. "Where a statute specifically authorizes injunctive relief, the plaintiff need not show either irreparable injury or lack of an adequate remedy at law." Carroll v. El Dorado Estates Div. No. 2 Assn. Inc., 680 P.2d 1158, 1160 (Alaska 1984). Therefore, the Borough did not need to show harm or the lack of an adequate legal remedy. The trial court was correct in granting the remedy of an injunction. B. Did the Borough represent to the LeDouxs that it is practicable to build a parking lot on the LeDouxs' property? The LeDouxs appear to make an estoppel argument. They argue that they bought the property in reliance on the Borough's finding that it is practicable to build a parking lot on the property. They claim that it is in fact impracticable to build the parking lot. They insist that they -should iiot *suffer' fat the Borough's errors. The Borough responds that there is no evidence in the record that the Borough represented it is practicable to build a parking lot. The LeDouxs reply that the Borough implicitly represented to the LeDouxs that building the parking lot is practicable by 3822 approving the LeDouxs'. variance application. Specifically, the LeDouxs argue that the Borough's statutory duty to investigate their variance application includes a duty to determine whether building the parking lot is practicable.2 The Leboxs argue that by approving the variance, the Borough implicitly represented to the LeDouxs that it is practicable to build a parking lot. The LeDouxs do not cite to any cases to support this theory. Estoppel consists of three general elementls: 1) a rep- resentation; 2) reasonable reliance on that representation; and 3) resulting prejudice. Municipality of Anchorage Iv.iHiaains, 754 P.2d 745, 748 n.11 (Alaska 1988). In the present case, the Borough cannot be estopped from enforcing its zoning regulations because it never represented that it is practicable to build on the LeDouxs' property. a parking lot The LeDouxs' property was originally zoned for noncommercial use. The Borough's variance only allowed the LeDouxs to use their property for commercial purposes.3 The variance did not exempt the LeDouxs from the off-street parkinglregulation. In fact, the Borough made it clear to the LeDouxs that they would have to adhere to the parking regulations by requiring the LeDouxs to submit a parking plan. In our view, the Borough's'requirement and 2 KIBC 17.66.030 requires the Borough to investigate varaiance requests. The LeDouxs' variance request included a parking plan. I I 3 The purpose of a variance is to relax zoning requirements in special circumstances. KIBC 17.66.010. Variances grant relief "from the literal import and strict application of zoning regulations." 101A C.J.S. Zoning and Land Planning 5 229 at 654 (1979). -5- 3822 acceptance of a parking lot plan is not a representation that the parking lot can be built. The LeDouxs' position would place a heavy and unwarranted burden on municipalities. It would require municipalities to examine the feasibility of every variance proposal or lose the ability to enforce its zoning laws. C. Was the award of attornev's fees iustified? The LeDouxs argue "[t]he award of $3,350.00 in attorney's fees on a requested award of $4,547.50 was unjustified and exces- sive." The LeDouxs argue the award is unjustified because the Borough is not the prevailing party. The LeDouxs explain "[the Borough) was denied an outright injunction, and the LeDouxs were at least allowed an opportunity to seek alternative parking." The LeDouxs argue the award is excessive because they did not act in bad faith. The Borough argues the trial court did not abuse its discretion in determining that it was the prevailing party because, inter alia, the Borough "won a judgment which requires [the LeDouxs) to provide off-street parking." The Borough argues that the trial court did not abuse its discretion in awarding the amount of attorney's fees because its award of approximately seventy-four percent of the Borough's actual attorney's fees is well within the range of the trial court's discretion. Alaska Civil Rule 82 authorizes the trial court to award attorney's fees to the prevailing party. The prevailing party for the purpose of an award of attorney's fees is the party who prevails on the main issues of the case. Demoski v. New, 737 P.2d 3822 780, 787 n.7 (Alaska 1987). The determination of the prevailing party rests in the discretion of the trial court. Buov v. ERA Helicopters. Inc., 771 P.2d 439, 448 (Alaska 1989) In the present case, the trial court did not abuse this discretion. The Borough sued to enjoin the LeDouxs from violating zoning regulations. The trial court granted this injunction. Thus, the trial court had a reasonable basis for ruling that the Borough is the prevailing party. Rule 82 further provides, "[i]n actionsiwhere the money judgment is not an accurate criterion for determining the fee to be allowed to the prevailing side, the court shall award a fee commensurate with the amount and value of legal services rendered." This award rests in the discretion of the trial court. Thorstenson v. ARCO Alaska. Inc., 780 P.2d 371, 376 (Alaska 1989). In the present case, the trial court awarded approxi- mately seventy-four percent of the. Borough's legal expenses. In other cases, we have affirmed trial court awards of sixty to eighty percent of the full attorney's fees incurred. IE.a., Bovee v. LaSaae, 664 P.2d 160, 165 (Alaska 1983) (trial court awarded $5,000 which approximated seventy percent of the total fees); Brunet v. Dresser Olvmoic Div. of Dresser, Ind., 660 P.2d 846 848 (Alaska 1983) (trial court awarded $6,000 which approximated sixty-one percent of the total fees); Hausam v. Wodrich, 574 P. 2d 805, 811 (Alaska 1978) (trial court awarded $9,680 which approximated eighty-six percent of the total fees). The present award, approxi - 3822 mating seventy-four percent of the total fees, is consistent with these cases and thus is not an abuse of discretion. CONCLUSION The judgment is AFFIRMED. -B- 3822 APPELLATE COURTS ALASKA COURT SYSTEM Pursuant to Appellate Rules 508(e) and (f)(1), attorney fees of $750.00 are awarded to appellee and the I appellee shall serve and file with this court an itemized and verified cost bill by March 30,1992. Entered at the direction of the court. Dated: March 18, 1992 dab Deputy Clerk of Court JAMIN, EBELL, BOLGER & GENTRY MATTHEW D. JAMIN C. WALTER EDELL• JOEL H. BOLGER` DIANNA R. GENTRY ALAN L. SCHMITT WALTER W. MASON•• DUNCAN S. FIELDS MICHAEL ARAUJO NiTTCO TO ALAS*A ANDwASNINDTON OARS .•a0MITTc0 tOwA9MINOTON Ban AAL PTNCNS ACSOTTCO TO aLASAA SAW Appellate Court Clerk' Office 303 K Street Anchorage, AK 99501 A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET KODIAK, ALASKA 99815 FACSIMILE: (907) 486-6112 TELEPHONE: (907) 486-6024 REPLY TO KODIAK OFFICE March 25, 1992 RE: LeDoux v. Kodiak Island Borough Supreme Court Case No. S-3997 Trial Court Case No. 3K0-89-210 CI Our File No. 4095-87 Dear Clerk: s SEA FAG TELZP ATTLE OFFICE: IT�J LIFE BULLOINO W PRT AVENUE ASMINGTON 913104 • 413: (2OO) 623.7521 MONS: (206) 622'7634 Enclosed for filing in the above -captioned action is Appellee Kodiak Wend Borough's Bill of Costs. A copy is also provided. Your attention to this matter is appreciated. Sincerely yours, JAMIN, ERRT,T., BOLGER & GENTRY Terry Houston Secretary to Joel H. J1413:tah Enclosures cc: Linda Freed, Director Community Development Department Honorable Jerome Selby, Mayor Mr. Jack McFarland, Presiding Officer Kodiak Wand Borough Assembly 6095\BTL. CLH El°J lS U i f' �I ; I,R 261992 COMMUNITY DEVELOPMENT DEPARTMENT JAMIN, EDELL BOLGER a GENTRY 323 CAROLYN STREET KODIAK. AK 99615 (907) 496.6024 IN THE SUPREME COURT FOR THE STATE OF'ALASKA KURT M. LEDOUX and GABRIELLE ) LEDOUX, ) ) Appellants, ) vs. ) KODIAK ISLAND BOROUGH, ) ) Appellee. ) ) Supreme Court Case No. S3997 Trial Court Case No. 3K0-89-210 CI BILL OF COSTS The Kodiak Island Borough, by and through counsel, submits its bill of costs as follows pursuant to Civil Rule 79(a). DATE DESCRIPTION FEE 05/01/91 Postage $ 2.73 06/12/91 Postage 2.13 06/13/91 Ken Wray's Printing (brief) 92.15 07/01/91 Telephone .58 07/01/91 Telephone ; .95 07/01/91 TOTAL COSTS $ 98.54 VERIFICATION Joel H. Bolger, being first duly sworn deposes and states that the foregoing items are correct, that the services have been actually and necessarily performed, and that the disbursements have been necessarily incurred in this action. OEL B0 SUBSCRIBED AND SWORN to before me this o `.day of March, 1992, at Kodiak, Alaska. 14(/ itixt2iciL Notary Public in an for.Alask- My Commission expires: h -5 -iS Certificate of Service The undersigned hereby certifies that a true and correct copy of the foregoing documeas served upon f the following b hand on the day day of March, 199 Kurt M. LeDoux LeDoux and LeDoux 219 Mill Bay Road Kodiak, AK 99615 JAN1R, EBE , i1] OLGER 6 GENTRY 4095\87P.046 JAMIN. EBELL BOLGER & GENTRY S29 CAROLYN STREET K001AK. AK 99615 (907) 486-6024 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA AT KURT M.,LEDOUX and ) GABRIELLE IEDOAX, ). Appellant, ) ANCHORAGE vs. ) ) CITY OF KODIAK, ) ) 1 ) CASE NO. 3AN-90-5625 Civil Appellee. ) ) CLERK'S AWARD OF COSTS ON APPEAL Costs are hereby awarded in favor of Appellee, the City of Kodiak 1 and against Appellants, Kurt M. DeDoux and Gabrielle Leroux ,' as follows: Filing Fee $ Preparation,of Record $ -- • Transcripts/Cassettes $ -- *Duplicating and Mailing Briefs/Memoranda $ 132.76 Premiums for any Cost Bond or Supersedeas Bond $ November 7, 1991 Date I,certify that on I11�(gl a copy of this award was sent to: TOTAL $ 132.76 Clerk C CoUrt *Copy costs reduced to $.15 a page. Certified mail fee denied. LeDoux, K. Agency Director(Fries)'/Stephens/Coe Clerk AP -334 (1/90)(st.3)' CLERK'S AWARD OF COSTS ON APPEAL P:Ov 1 21991 COMMUNITY-aDEVELOPMENT Appd1tstti taenEPik ---- LeDOUX & LeDOUX ATTORNEYS AT LAW 219 MILL BAY ROAD KODIAK, ALASKA 99615 (907) 486-4082 ATTORNEYS FOR APPELLANTS 6,:f1E . ¥'. 1 M. '11 F..Pi SE_5 RECEIVED IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT' AT ANCHORAGE KURT M. LeDOUX and GABRIELLE LeDOUX Appellants, vs. CITY OF KODIAK, Appellee. Case No. 3AN-90-5625 Civil DESIGNATION OF RECORD COMES NOW Appellants, Kurt M. LeDoux and Gabrielle LeDoux, through their attorney, Kurt M. LeDoux of LeDOUX & LeDoux, and they hereby designate on appeal the following: (1) The entire record prepared by the City Clerk for the appeal to the Superior Court appeal which consists of the following documents: (a) Complaint, Case No. 3K0-89-210, dated February 29, 1989. (b) Defendants, Answer to Complaint, Case No. 3K0-89-' 210, dated May 31, 1989. (c) Decision of the Board of Adjustment; dated June 6, 1990. (d) Hearing transcript before Board of, Adjustment on June 5, 1990. coda, _ c'ho -. 1, cct L K\i3 q.30-ei\ (e) All exhibits submitted to the Planning and Zoning Commission on December 20, 1989. (f) Appellants hearing brief submitted to the Board of Adjustment on June 5, 1990. (g) Hearing transcript before the Planning and Zoning i Commission on December 20, 1989. (h) Appellants January 17, 1990, request for additional findings and those findings adopted by the Planning and Zoning Commission on February 21, 1990. (2) Appellants' brief to Superior Court, dated February 19, 1991. (3) Appellees brief to Superior Court, dated March 26, 1991. (4) Appellants' reply brief to Superior Court, dated April 30, 1991. (5) 1991. Memorandum Decision of Superior Court, dated August 23, RESPECTFULLY SUBMITTED thi sj day of*September, 1991. LeDOUX & LeDOUX ATTORNEYS AT LAW �nrutl teal ee'tis .ay oer 11 hentprc' ie 1.16(- t served a True Ano corredt' DPI •I the above ea tau ettsrner 41 tassrd to Ills Weltett (htVO\ SkOvErty by mail A ledoux.3\desig.2 BY: eDo for Appellants DESIGNATION OF RECORD, 3AN-90-5625 Civ., p. 2 LeDOUX & LeDOUX ATTORNEYS AT LAW 219 MILL BAY ROAD KODIAK, ALASKA 99615 (907) 486-4002 J ATTORNEYS FOR APPELLANTS IN THE COURT FOR THE STATE OF ',ALASKA THIRD JUDICIAL DISTRICT' AT ANCHORAGE KURT M. LeDOUX and GABRIELLE LeDOUX vs. Appellants, CITY OF KODIAK, Appellees. Case No. 3AN-90-5625 Civil POINTS ON APPEAL s RECEIVED Appellants Kurt M. LeDoux and Gabrielle LeDoux hereby submit their points on appeal as follows: 1. The Superior Court (hereinafter referred to as Court) sitting as an intermediate appellate court erred in denying Appellants' appeal of the decision of the Kodiak City Council sitting as a board of adjustment (hereinafter referred to as Board) concerning the appeal of the decision of the Kodiak Planning and Zoning Commission (hereinafter referred to as P&Z). 2. The Court erred in holding that the Board could make its own finding of fact based upon the evidence in the record. 3. The Court erred in impliedly holding that the Board was not limited to merely affirming or reversing the findings made by the P&Z. 4. The Court erred in impliedly holding that the matter should not be remanded to the P&Z to make findings of fact which it had previously failed to make. 5. The Court erred in upholding the decision of the Board that Appellants' property was not within 600 feet of the down town public parking lot in Kodiak even though the P&Z never made a finding of fact on that issue. � I 6. The Court erred in not remanding this matter to the P&Z to make findings as to whether it was suitable for Appellants to I I use the down town parking lot and whether it was within 600 feet of Appellants' property. 7. The Court erred in finding that the language contained in KIBC 17.57.020 concerning whether a. property owner may use alternative parking when it is impracticable/to�build a parking lot on the owner's property is permissive rather than mandatory. 8. The Court erred in upholding the decision of the Board that Appellants could not use alternative parking because they could not obtain a permanent easement. 9. The Court erred in finding that the'relwas substantial evidence to uphold the decision. of the Board that the proposed parking lot in the back yard was practical. ' 10. The Court erred in holding that the applicable standard of review was whether there was a rational basis for the Board's and/or the P&Z's decision. 11. The Court erred in finding that there was a rational basis for the decision of the Board. 12. The Court erred in holding that the Board did not POINTS OF APPEAL, 3AN-90-5625 Civ., p.. 2 abuse its discretion. 13. The Court erred in finding that Appellants did not seek a variance. 14. The Court erred in finding that Appellants were not already providing alternative parking. 15. The Court erred in upholding the.decislion of the Board that the P&Z did not act arbitrarily and capriciously in denying the use of alternative parking because the parking lot was not within the line of sight of Appellants' property. 16. The Court erred in not remanding the matter to the Board and/or the P&Z to determine whether the parking lot was within 600 feet of Appellants' property. 17. The Court erred in finding that the requirement of a permanent easement was rationally related to the aims of the zoning plan and that the P&Z did not abuse its discretion in 18. The Court erred in finding that Appellants could not use alternative parking, i.e., the city public parking lot because they would not be "providing or maintaining" it. 19. The Court erred in finding that the Court could not consider equitable arguments including but not limited to estoppel in making its decision. 20. The Court erred in finding that there was substantial evidence that supports the finding of the Board that the proposed parking lot in the back yard was not impractical. 21. The Court erred in finding that the Board had the imposing such a requirement. POINTS OF APPEAL, 3AN-90-5625 Civ., p. 3 power to reverse a finding of the P&Z.an`d/or the right to reverse a finding of the P&Z when neither it or Appellants sought reversal of such finding. 22. The Court erred in holding that, the Board had authority to make findings of fact. RESPECTFULLY SUBMITTED thi i day of September, 1991. • LeDOUX & LeDOUX ATTORNEYS AT L' ledoux.3\points.2 1.h IOW at it ttit tit %tried a tree eat etrreat ten et the clove Wet nee 41 'tent iaeACb 111'; melleaM 0E1J bke.Oero BY• rt ' . LeDoux, A t. -y for endants POINTS OF APPEAL, 3AN-90-5625 Civ., p. 4 LODOUX & LeDOUX ATTORNEYS AT LAW 219 MILL BAY ROAD KODIAK, ALASKA 99615 (907) 486-4082 ATTORNEYS FOR APPELLANTS IN THE SUPERIOR COURT FOR THE STATE THIRD JUDICIAL DISTRICT; AT ANCHORAGE KURT M. LeDOUX and ) GABRIELLE LeDOUX ) ) Appellants, ) ) vs. ) ) CITY OF KODIAK, ) Appellee. ) Case No. 3AN-90-5625 Civil NOTICE OF APPEAL OF ALASKA COMES NOW Appellants Kurt M. LeDoux and Gabrielle LeDoux, of 219 Mill Bay Road, Kodiak, Alaska 99615, land they hereby give notice of their appeal to the Alaska Supreme Court of the Memorandum Decision of the Superior Court acting as an intermediate appellate court, dated. August 23, 1991, concerning the decision of the Kodiak City Council sitting as a board of adjustment, dated June 6, 1991, which affirmed a decision of the Kodiak Planning & Zoning Commission. RESPECTFULLY SUBMITTED this day of September, 1991. LeDOUX & LeDOUX ATTORNEYS AT LAW' 14+ 1 300111tnet ler et ' crtemhw r i 1941 1 smell a true ens mined *GPI of the elms en each BY %tt/rnev et record IQ k(i taIts:� rn.toU\ bkaphin5 111 I11R11 ' �tl)r Wxt�ii Cap" cf K r.� LeDpux, fo Appellants LeDOUX & LeDOUX ATTORNEYS AT LAW 219 MILL BAY ROAD KODIAK, ALASKA 99615 (907) 486-4082 ATTORNEYS FOR APPELLANTS f Q IN THE SUPERIOR COURT FOR'THE STATE OF !ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE KURT M. LeDOUX and ) GABRIELLE LeDOUX ) Appellants, ) vs. ) CITY OF KODIAK, ) Appellee. ) Case No. 3AN-90-5625 Civil SUBMISSION OF SURETY BONDS COMES NOW, Kurt M. LeDoux and Gabrielle LeDoux, through their attorney, Kurt M. LeDoux of LeDoux & Ledoux, and pursuant to Alaska Civil Rule 80 and Alaska Appellate Rule 204(c)', Appellants hereby submit the attached surety bonds in the'form prescribed by Alaska Civil Rule 80 in the amount of $750.00 as security for the payment of costs on appea RESPECTFULLY SUBMITTED thisday of September, 1991. *� LeDOUX & LeDOUX tem, 'brit 41 In ATTORNEYS AT LAW -eY oIL: 1Ue11 t 1 :rived a lyse ono correct rcPy of the r, tao en encs ettornev At rscard 'n this matt ar; (110u.% rt r1\EQ M by Y11M1 ledoux.3\surety.3 1,3 Z BY Ku t '. eDoux,'Attorney for Appellants SURETY BONDS Appellant Kurt M. LeDoux, as principal, and Beverly Eufemio, as surety, jointly and severallyluridertake in the amount of $750.00 to pay as costs if Appellants' appeal is dismissed or the judgment appealed from affirmed. Said surety hereby consents and agrees to the provisions of Alaska Civil Rule 80(f) and Alaska Appellate Rule 204(f). IN WITNESS WHEREFORE we have set our hands hereto this 24th day of September. Imo' (.44.4 C T i, rsepicL: Beverlyifemi as Surety for Kurt M. LeDoux Appellant Gabrielle LeDoux, as principal, and Beverly Eufemio, 1 as surety, jointly and severally undertake in the amount of $750.00 to pay as costs if .Appellants' appeal is dismissed or the judgment appealed from affirmed. Said surety hereby consents and agreesto the provisions of Alaska Civil Rule 80(f) and Alaska Appellate Rule 204(f). IN WITNESS WHEREFORE we have set our hands hereto this 24th day of September. • LeDoux Principal u Coit izsri-t, everly for Gab STATE OF ALASKA } } ss. THIRD JUDICIAL DISTRICT } I, Beverly Eufemio, being duly surety on the foregoing Bonds; that I of Alaska; that I am not an attorney other office of any court, and that I over and above all debts, liabilities execution. SUBSCRIBED and SWORN September, 1991. th 11111 IIRI Ing 1001.16"4,—,. ay III .SEsliEi tt.t_ KiAi >ervcd a Irse atm rart4ef ecuY of t ho nf:cae an ceeQ etiolneV st r6cird 'n this matter; ftltiv\n 5\CQY\En5 k4 80. ufemias Surety elle LeDoux sworn, swear that I am a am a resident of the State , peace officer, clerk, or am worth more than $750.00 and properties exempt from to before me this; 24th day of /9 Nota y Public in Alaska My Commission Expires: 0— CERTIFICATE OF ATTORNEY cf —92 Examined and recommended for approval as provided in Rule SURETY BOND, CASE No. 3AN-90-5625 Civ., p. 2 APPROVAL BY JUDGE 1 hereby approve the foregoing. DATED this day of , 1991. �c,}h 1 entity Mtn ler et hUrtuftorr _ 1 wu 1 served a true ens correet' leP? el the above en eeels 'Werner el record In Ms ®alted 11100n ba.V,phEt15 Soy mak1 Judge SURETY BOND, CASE No. 3AN-90-5625 Civ.,.p. 3 MELVIN M. STEPHENS, 13 A PROFESSIONAL CORPORATION ATTORNEY AT LAW 104 CENTER AVENUE, SUITE 206 P. 0. SOX 1129 KODIAK, ALASKA 90015 TELEPHONE (907) 486-3143 August 27, 1991 City of Kodiak P.O. Box 1397 Kodiak, Alaska 99615 Attn: Marcella Dalke, City Clerk RE: LeDoux Appeal of Parking Requirements My File No. 844.179 Dear Marcella: JAMIN, EBt - L, BGEN FRY A Prof .,ionol Corporation AUG 2 81991 KODIAK, ALASKA Enclosed is a copy of the court's decision deciding the LeDoux's appeal in favor of the City. This decision may or may not bring this matter to a close; I note, however, the following pattern: In appearing before the Planning and Zoning Commission, Kurt LeDoux assured everyone that, if the Commission did not grant his exception request, he would simply build the parking lot. When the Commission denied his request, he appealed to the Board of Adjustment. When Kurt LeDoux appeared before the Board of Adjustment on appeal of the Planning and Zoning Commission's decision, he assured everyone that, if the Board found against him, he would simply build the parking lot. When the Board found against him, he appealed to the Superior Court. In arguing this case before Judge Hopwood, Kurt LeDoux assured the judge that, if the court found against him, he would simply build the parking lot. Now that the court has found against him, .... Sincerely, I ,. MMS: maa Enclosure dalke.827 cc: Joel Bolger (w) Melvin M. Stephen MATTHEW D. JAMIN C. WALTER EBELL JOEL H. SOLGER• DIANNA R. GENTRY ALAN L. SCHMITT WALTER W. MASON• DUNCAN S. FIELDS MICHAEL ARAUJO *ADMITTED TO ALASKA ARO WASHINGTON BARS ALL OTHERS ADURTEO TO ALASKA BAR JAMIN, EBELL. BOLGER & GENTRY A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET--. KODIAK, ALASKA 99615 FACSIMILE: (907) 466-6112 TELEPHONE: (907) 486-6024 REPLY TO KODIAK OFFICE May 23, 1991 EXPRESS MAIL, RRR NO. B07224153WQ \v� Appellate Court Clerk' O�fie 303 K Street ' Anchorage, AK 99501 RE: LeDoux v. Kodiak Island Borough Case No. S-3997 Our File No. 4095-87 Dear Clerk: SEATTLE OFFICE 300 MUTUAL LIFE BUitLDING 605 FIRST AVENIJE SEATTLE. WASHINGTON 91310A FACSIMILE: 1206) 6237321 TELEPHONE: (206) 622-7634 Enclosed please find the original Brief of Appellee for your approval prior to printing. After approval of the brief, please call Ken Wray's Printing at 276-4535 for pick upland printing of the brief. Ken Wray's Printing has been notified by our office that you will be calling them to pick it up. Also enclosed is an Affidavit of Service. Thank you for your assistance in this matteriand if you have any questions, please do not hesitate to contact our office. Sincerely yours, JAMIN, EBELL, BOLGER & GENTRY de 6 H. 42eL JHB:dlm Enclosures cc: Linda Freed, Director Community _ Development _ Department-, _ w/_enc . Honorable Jerome Selby, Mayor--- - __ Mr. Jack McFarland, Presiding Officer Kodiak Island Borough Assembly 4095\87L.011 Ps -ea S(a4k t CID,►�I IN THE SUPREME COURT FOR THE STATE!OF KURT M. LEDOUX and GABRIELLE ) LEDOUX, Appellants, ) ) vs. ) ) KODIAK ISLAND BOROUGH, ) ) Appellee. ) ) Supreme Court Case No. S3997 Trial Court Case No. 3K0-89-210 CI AFFIDAVIT OF SERVI ALASKA STATE OF ALASKA )ss. THIRD JUDICIAL DISTRICT ) Donna L. Mooney, being first duly sworn, deposes and states as follows: that on the oday of May, 1991, I served the BRIEF OF APPELLEE on Kurt M. LeDoux, LeDoux &'ILeDoux, 219 Mill Bay Road, Kodiak, Alaska 99615, attorney for Appellants Kurt M. LeDoux and Gabrielle LeDoux, by First Class mail. 1991. 4095\87P.045 JA.MIN, ESELL IOLGER & GENTRY 323 tAROL h STREET KOOMAK. AK 99615 19007) 486-6024 De tic, - 227ond r- Donna L. Mooney SUBSCRIBED AND SWORN to before me this '4 day of May Li 11 Notary P blic in' and for Alaska My Commission Expires: IN THE SUPREME COURT FOR THE STATE OF ALASKA KURT M. LEDOUX and GABRIELLE LEDOUX, Appellants, vs. KODIAK ISLAND BOROUGH, Appellee. Supreme Court Case No. S-3997 APPEAL FROM THE DECISION OF THE SUPERIOR COURT OF THE STATE OF ALASKA THIRD JUDICIAL DISTRICT THE HONORABLE ROY H. MADSEN, SUPERIOR COURT JUDGE BRIEF OF APPELLEE Joel H. Bolger JAMIN, EBELL, BOLGER 8 GENTRY 323 Carolyn Street Kodiak, AK 99615 (907) 486-6024 Filed in the Court of Appeals for the State of Alaska this day of June, 1991. Deputy Clerk TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES STATUES RELIED UPON ISSUES PRESENTED FOR REVIEW STATEMENT OF THE CASE PROCEEDINGS BELOW ARGUMENT I. STANDARD OF REVIEW II. THE LEDOUXS ARE REQUIRED TO PROVIDE A PARKING LOT A. An Injunction is Authorized by Statuteand Ordinance. I B. The Off -Street Parking Regulations Arel Legitimate and Enforceable 12 III. 'slit LEDOUXS' DEFENSES ARE BARRED BY' ESTOPPEL AND RES JUDICATA I 15 I A. Equitable Estoppel 15 I B. Res Judicata. 1 17 IV. A STAY OF PROCEEDINGS IS COMPLETELY UNNECESSARY . . . 18 I V. THE RODIAK ISLAND BOROUGH IS THE PREVAILING PARTY. . . 22 VI. THE ATTORNEY'S FEES AWARD WAS JUSTIFIED BECAUSE THE LEDOUXS' DEFENSES WERE FRIVOLOUS. 1 24 VII. SUMMARY AND CONCLUSION 25 Page i ii v 1 2 6 9 9 9 9 i TABLE OF AUTHORITIES CASES: Adar v. Incorporated Village of Lake Success, 454 N.Y.S.2d 262 (App. Div. 1990); 12 Alaska Northern Development, Inc. v. Alveska.IPipeline Service Company, 666 P. 2d 33 (Alaska 1983) 24 Alveska Pipeline Service Company v. 629 P.2d at 512 (Alaska 1981) Anderson, Apex Control Svstems,Inc. v. Alaska 776 P.2d 310 (Alaska 1989) Betz v. Chena Hot Spring Group, 742 P.2d 1346 (Alaska 1987). Mechanical, Inc., Bovee v. Lasage, 664 P.2d 160 (Alaska 1983) Buoy v. ERA Helicopters, Inc., 771 P.2d 439 (Alaska 1989) Burnet v. Dresser Olympia Division of Dresser, Inc., 660 P.2d 846 (Alaska 1983) Carroll v. El DoradoEstates Division No. 2 Association, Inc., 680 P.2d 1158 (Alaska 1984); City of Omaha v. Cutchall, 114 N.W.2d 6 (Neb. 1962) Crawford and Company v. Vienna, 744 P.2d 1175 (Alaska 1987) DeMoski v. New, 737 P.2d 780 (Alaska 1987) Drickerson v. Drickerson, 546 P.2d 162 (Alaska 1976) Ehredt v. Dehavilland Aircraft Company of Canada,i 750 P.2d at 446 (Alaska 1985) 1 Gilpin v. Jacob Ellis Realties, Inc., 135 A.2d 204 (N.J. Sup. 1957) Hausam v. Woodrich, 574 P.2d 805 (Alaska 1978) 20 22 19 24 22 24 10 13 24 22 17 19 13 24 Hobbs v. Smith, 493 P.2d 1352 (Col. 1972) Hoyt v. Geist, 364 S.W.2d 461 (Tex. App. 1963) Jefferies 604 Miller v. 509 v. Glacier State Telephone Company, P.2d 4 (Alaska 1979) City of Fairbanks, P.2d 826 (Alaska 1973). Municipality of Anchorage v. Higgins, 754 P.2d 745 (Alaska 1988). 13 13 17 10, 14 O.K.Lumber Co., Inc. v. Providence Washington Insurance Company, 759 P.2d 523 (Alaska 1988). Semlek v. National Bank of Alaska, 458 P.2d 1003 (Alaska 1969) Seward Chapel. Inc. v. City of Seward, 655 P.2d 1293 (Alaska 1982) Sublett v. Commercial Fisheries Entry Commission, 773 P.2d 952 (Alaska 1989). Thorstenson v. Arco Alaska, Inc., 780 P.2d 371 (Alaska 1989) Varner v. 397 Vogler v. 635 Aboussie, P.2d 494 (Okla. 1964) Fairbanks North Star Borough, P.2d 462 (Alaska 1981). 15 9 9 14 17 24 13 10, 14 Wawa Food Market v. Planning Board of the Borough of Ship Bottom, 545 A.2d 786 (N.J. Super. 1988) 12 Zilinsky v. Zoning Board of Adiustment, 521 A.2d 841 (N.J. 1987). 1 12 ALASKA STA'1'UTLrS: Alaska Statute 29.40.040(a)(1) Alaska Statute 29.40.190(a) iii 9 11 KODIAK ISLAND BOROUGH CODE Kodiak Island Borough Code 17.36.030 Kodiak Island Borough Code 17.57.020 Kodiak Island Borough Code 17.75.030(a) Kodiak Island Borough Code 17.20.030 Kodiak Island Borough Code 17.80.010 OTHER 2 9 11 2 22 Annotation, "Zoning: Residential Off -Street Parking Requirements," 71 ALR 4th 529 (1989) 12 iv STATUTES RELIED UPON ALASKA STATUTES AS 29.40.040 provides as follows in pertinent !part: Land use regulation. (a) In accordance With a comprehensive plan adopted under AS 29.40.030 and in order to implement the plan, the assembly by ordinance shall adopt or amendlprovisions governing the use and occupancy of land that may include; but are not limited to, (1) zoning regulations restricting the improvements by geographic districts. . . use of land and AS 29.40.190 provides as follows in pertinent part: Remedies. (a) The municipality or an aggrieved person may institute a civil action against a person who violates a provision of this chapter, a subdivision regulation !adopted under this chapter, or a term, condition, or limitation imposed by a platting authority. In addition to other relief, a civil penalty not to exceed $1,000 may be imposed for each violation. An action to enjoin a violation may be brought notwithstanding the availability of any other remedy. Upon application for injunctive relief and a finding of a violation or threatened violation; shall grant the injunction. KODIAK ISLAND BOROUGH CODE KIBC 17.20.030 provides as follows: Area requirements. A. Lot v the superior court Area. The minimum lot area required, per dwelling unit, is as follows: Building Tuve 1. Single-family 2. Two-family (duplex) 3. Three-plex 4. Four-plex 5. Five-, six- or seven-plex 6. Eight-plex or larger Lot Area'Required Per Dwelling Unit (in square feet) 7,200 3,600 2,400 2,000 1,600 1,200 B. Lot Width. The minimum lot width required is sixty feet. (Ord. 83-17-0 §4(part), 1983). RISC 17.36.030 provides as follows in pertinent part: Nonconforming lots of record. In any district in which single- family dwellings are permitted, notwithstanding limitations imposed by other provisions of this title, a single-family dwelling and customary accessory buildings may be erected on any single lot of record existing at the effective date of adoption or amendment of the ordinances codified in this title. . RISC 17.57.020 provides as follows in pertinent part: Off-street parking --Number of spaces required. A. For each principal building or use within a principal building, there shall be no less than the number of off-street I I parking spaces specified under this section. 1. Dwelling: a. Single-family dwellings, :mobile homes, and multifamily dwellings up to and including six-plexes: Two parking spaces for each unit. vi 2. Buildings other than dwellings: a. Bank, office building, professional office, or clinic: one parking space for each three hundred square feet of gross floor area, but not less than three spaces. . . KIBC 17.57.030 provides as follows: Off-street parking --Location. All parkincj spaces required under Section 17.57.020 shall be on the same lot as, or a lot adjacent to, the principal building that they service; provided, that if the planning commission finds that it is impractical to locate the spaces on such a lot, it may permit them to be located on any lot within six hundred feet of the principal building. Al]. parking spaces required under Section 17.57.020 shall be located in a use district permitting the use which they serve. (Ord. 84-60-0 §1(part), 1984: Ord. 80-18-0 §1(part), 1980). 1 KIBC 17.80.010 provides as follows in pertinent part: Organization. A. The borough assembly is the board of adjustment outside the boundaries of the City of Kodiak and for any municipality in the borough which does not exercise this power. The 1 Kodiak city council is the board of adjustment within its boundaries. vii 1 ISSUES PRESENTED FOR REVIEW 1. Can the Superior Court enjoin the violation of an off-street parking ordinance where an injunction is authorized and required by that ordinance? 2. Can the Superior Court refuse to enforce a valid off- street parking ordinance? 3. Are Mr. and Mrs. LeDoux barred by equitable estoppel from denying the off-street parking requirement in view of the numerous previous assertions by themselves and their predecessors in interest agreeing to provide a parking lot? , 4. Are Mr. and Mrs. LeDoux barred from relitigating the parking lot question by the doctrine of res judicata? 5. Should the Superior Court enter a stay of proceedings on a summary judgment motion when the moving party demonstrates no genuine issues of fact and is entitled to a judgment as a matter of law? 6. Should the Superior Court enter, a:stay of judgment pending related administrative proceedings, when the judgment will have no effect on the administrative proceedings? 7. Should the Superior Court enter; a stay of judgment when the only effect of the stay will be to delay the enforcement of zoning regulations authorized by statute? 6. Is the Kodiak Island Borough the,prevailing party in this proceeding where they have obtained a judgment requiring Mr. and Mrs. LeDoux to provide off-street parking? 9. Is an award of seventy-five percent (75%) of actual attorney's fees incurred justified when all of the losing parties' claims are frivolous and unsupported by evidence? STATEMENT OF THE CASE ' I ' On October 13, 1987, Toby Cook submitted an application for a variance on behalf of Joel Davis with:respect to property described as Lot 6A, B, and C, Block 8, Kodiak Townsite, proposing the use of the existing single family residence ,as a professional office and upstairs apartment. (R. 142). IThe application was accepted on October 14, 1987, "subject to submittal of a parking plan by 10/23/87".1 (R. 142). In support of the variance application,1Kurt M. LeDoux of LeDoux and LeDoux submitted an as -built survey labeled "Proposed Use of Real Property for Combination Office and Upstairs Apartment." (R. 145). The design included a driveway along the northeast boundary of the property and a parking area In the western most corner including "eight 8' X 20' parking spaces.'"; (R. 145). The planning and zoning commissionIscheduled a public hearing on the variance application for Wednesday, November 18, 1987. In response to the public hearing notice, a neighboring ' The variance was requested to permit an existing single family residence to be converted into a professional office building. The lot is located in an R3 multi -residential zone. (R 150). The minimum lot area in an R3 zone is 7200 square feet for a single family dwelling unit and the minimum lot width is 60 feet. Kodiak Island Borough Code (RISC) Section 17.20.030. The lot is substandard in area (6211 square feet) and width (average equals 47.42 feet). (R. 151, 157). The only use allowed on a nonconforming lot is a single family residence; a variance is required to allow any other type of land use. KISC 17.36.030. The variance in the present case was therefore necessary to convert the structure from a residence to a professional office building. 2 landowner, Mike Hendel, requested a solid fence between Lot 5 and Lot 6 as a condition of approval and asked the commission to check the driveway and parking area. (R. 146). In response, Mr. LeDoux delivered a letter to the Kodiak Island Borougli on October 22, 1987, indicating as follows: I would like to modify my proposed variance request. I have requested the Community Baptist Church to grant me a parking easement. This request is being considered by theichurch. I therefore need to go forward with the proposed parking behind the house.' IMr. Tom Hendel at 217 Upper Mill Bay wants me to build a six foot wooden fence from the rear of the house along the property line to Harbor View Apartment's fence. I have no objection to this. I would request that the planning and zoning permit my use of 219 Upper Mill Bay as a combination office and upstairs apartment with either the parking requirements being satisfied by the use of Community Baptist Church if an agreeable arrangement can be worked out with the church or the use of the backyard at 217 Upper Mill Road. If the backyard is, used as a parking lot, a six foot fence would belerected along the parking lot between 217 Upper Mill Bay Road and 219 Mill Bay Road. (R.' 149). The Community Development Departmentiof the Kodiak Island Borough recommended to the Planning and Zoning Commission that the commission grant the variance on the condition that a six foot solid wood fence be placed on the left side at the reariproperty lines of the lot. (R. 156). The staff recommendation clearly incorporated the parking design submitted by Mr. LeDoux. The proposed use of the property for an office and apartment requires the provision of eight off-street parking spaces, computed as followed: . . . These spaces will be located in the rear yard and accessed by a driveway along the right side of the structure which is only 9.3 feet 29.9 feet in width along the side of 3 the house. The proposed parking plan is attached. (R. 153). There is no evidence in the record !that anyone from the Kodiak Island Borough was requested to check the residence to substantiate the honesty of the parking design which Mr. LeDoux submitted. Mr. LeDoux argues in his statement of facts that the residence was inspected by Bob Scholze; this,would be impossible because Bob Scholze was not employed by the Kodiak Island Borough at the time of Mr. LeDoux's application. (R. 174). The Planning and Zoning Commission Held a hearing on the variance application on November 18, 1987. Mr:Cook stated that the alternative of using the church lot for parking was not possible. (R. 159). The minutes of that meeting showed that the variance was granted in reliance on the parking lot design LeDoux. submitted by Mr. However, since the office building will be located between two single family 'residences and utilize the backyard for parking; a buffer between the parking lot and adjoining properties is appropriate. (R. 160). There is no evidence in the record that,, the Planning and Zoning Commission made any finding concerningithe practicality of the parking lot design which had been submitted by Mr. LeDoux. 1 I On November 19, 1987, a letter containing the Planning and Zoning Commission's findings granting the variance in reliance on the parking design was forwarded to Toby Cook with a copy to Kurt LeDoux. (R. 161-63). There was no appeal taken from the commission decision. (R. 140). The property was conveyedlfrom Joel Davis and Carol Davis to Kurt M. LeDoux and Gabrielle LeDoux by statutory 4 warranty deed executed December 5, 1987, and recorded December 11, 1987, at Book 89, Page 289, Kodiak Recording District. (R. 164). Mr. and Mrs. LeDoux did not attempt to construct the driveway and parking lot contained in the parking design they submitted with the variance application. They just moved their professional office into the residence in violation of the terms of the variance. On January 19, 1988, a letter Community Development Department to Kurt LeDoux as sent from the indicating, among other things, that he was not in compliance:with the off-street parking requirements of the Kodiak Island Borough Code. (R. 167). Mr. LeDoux applied for and received zoning compliance on February 24, 1988, which included the requirement that:he "install eight 8' X 20' parking spaces with bumper guards" on the real property. (R. 169). On October 17, 1988, Bob Scholze of the Community Development Department contacted Kurt LeDoux byjtelephone. (R. 174). I Mr. Scholze reminded Mr. LeDoux that accordingito+the conditions of the variance granted him for the use of the residence at 219 Mill Bay Road as an office, he was to install eight parking spaces behind the building. Mr. Scholze informed Mr. LeDoux that failure to follow through on the parking design which he had submitted and on which the variance had been granted left him in violation and could ultimately result in the business use of that building being discontinued. (R. 174-75). On October 25, 1988, Mr. Scholze contacted Kurt LeDoux by telephone. Mr. LeDoux stated that he planned to put the parking lot 5 in but was unsure about the weather. He said that it would take maybe two months. Mr. Scholze stated that' he would write an administrative decision and that Mr. LeDoux could either comply with or appeal the decision to the Planning and Zoning Commission indicating a time when the work would be expected to be in progress. (R. 175-76). On October 27, 1988, Mr. Scholze issued an administrative decision requiring the parking lot to be completed: A parking lot providing eight parking spaces and bumper guards will be installed to the rear of the property behind the building as indicated in the parking plan on file. Construction on the parking lot will begin within thirty days and be completed] within ninety days of your receipt of this letter. (R. 170). Mr. Scholze contacted Mr. LeDoux to confirm his receipt of the certified letter and his understanding of the scheduled deadlines. Mr. LeDoux confirmed that he received the letter and that he understood that his ten day appeal period must begin work on 1988, and complete enforcement action. having passed, he the parking lot installation! by November 30, the work by January 30, 1989; or face further (R. 176). Mr. Scholze inspected the residence on November 28, 1988 and November 30, 1988 and dltermined that no work had been commenced on the parking lot. ('R. 176). The final deadline for construction of the lot expired on January 30, 1989. PROCEEDINGS BELOW The complaint in this action was filed on May 10, 1989, requesting an injunction requiring the defendants to discontinue the use of the residence as a professional office ;building until they 6 provide the eight off-street parking spaces pursuant to the requirements of the Kodiak Island Borough Code. (R. 3). In their answer filed May 31, 1989, the defendants alleged several affirmative defenses including allegations that! the Borough was guilty of laches or unclean hands, that the Borough had acted arbitrarily and capriciously in requiring the lot, that the Borough was guilty of favoritism to certain property owners, and that the Borough's action was brought in bad faith. (R; 11). The Kodiak Island Borough filed a Motion for Summary Judgment on July 21, 1989. (R. 13). In order to contradict the defendants' alleged affirmative defenses, the Borough was required to provide extensive briefing on the issues ofiequitable estoppel, quasi -estoppel, waiver, res iudicata, and exhaustion of administrative remedies. (R. 24-32). The defendants filed an opposition' to the motion for summary judgment on October 6, 1989. (R. 34). The opposition did not provide any factual support for any of the affirmative defenses which had been alleged by the defendants. Instead, the defendants alleged that it was impractical to build a parking lot in their backyard and that the court should authorize an alternate parking location.2 (R. 36-39). The Borough pointed out in its reply memorandum filed October 17, 1989, that the jurisdiction for 2 This court should note that there is nothing in the record to indicate that Mr. and Mrs. LeDoux had even investigated the construction of a parking lot in their backyard prior to the Borough's Motion for Summary Judgment. The first time this issue was addressed was in the affidavit of Bernie Lindsey, dated October 6, 1989, questioning the wisdom of construction of the lot in Mr. and Mrs. LeDoux's backyard. (R. 40-41). 7 determining the validity of an alternate parking location was vested solely in the Planning and Zoning Commission., point, no application for an alternate parking filed. (R. 49). At that location had been Finally, the defendants, on November 10, 1989, submitted an application to the Planning and Zoning Commission for an alternate parking location. (R. 62). The application was denied on — i 1 December 20, 1989, on the basis that Mr. and'Mrs. LeDoux had not proposed any practical alternate location. (R. 60). Recognizing the futility of their position, Mr. and Mrs. LeDoux submitted a last minute Motion to Stay Proceedings on December 29, 1989, immediately before the summary judgment argument which was scheduled for 2:30 p.m. on that date. (R. 52-53). In response to the motion for stay, the Borough argued that the court could enter a judgment allowing Mr. and Mrs.,LeDoux to prosecute 1 their appeal concerning an alternate parking location, but requiring I them to discontinue the illegal use of the residence after the administrative proceedings had been concluded. (T.I1-2). On January 12, 1990, the Superior Court granted the plaintiff's Motion for Summary Judgment, requiring that following a final decision of the Board of Adjustment or any timely court appeal of that decision regarding an alternate parking location, Mr. and; Mrs. LeDoux must discontinue the use of the residence as a professional office building until they construct eight off-street parking spaces on the property or provide an approved alternate parking location. (R. 62- 63). 8 ARGUMENT I. STANDARD OF REVIEW ' Civil Rule 56(c) permits renditionpof summary judgment where the pleadings, affidavits, depositions and omissions on file show that there are no genuine issues as to any material fact. Semlek v. National Bank of Alaska, 458 P.2d 1003, 1005-1006 (Alaska 1969). Appellate review is de novo; summary judgment must be upheld when the evidence presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. O.K. Lumber Co., Inc. v. Providence Washington Insurance Company, 759 P.2d 523, 525 (Alaska 1988). 1 II. THE LEDODXS ARE REOWIRED TO PROVIDErA PARKING LOT The entry of summary judgment to enforce the off-street parking requirements in the case is specifically required by Borough ordinance. The Borough is not required to show either irreparable injury or lack of an adequate remedy at law. Despite the LeDouxs' very general assertions otherwise, off-street; parking regulations are legitimate, beneficial, and enforceable. A. An Iniunction is Authorized by Statute and Ordinance. i The Kodiak Island Borough is required by statute to enact "zoning regulations restricting the use of land and improvements by geographic districts." AS 29.40.040(a)(1). The Borough has enacted off-street parking regulations requiring each professional office building to provide one parking space for each 300 square feet of gross floor area and single family dwellings to; provide two parking spaces for each unit. RIBC 17.57.020. 9 1. Mr. and Mrs. LeDoux are required to provide eight off- street parking spaces. The variance application requested a change in the use of the property from "SFR" (singlelfamily residence) to a proposed use as "a professional office and ;upstairs apartment." (R. 142). The staff of the Community Development Department determined in their report that the square footage of proposed use of the property for a law office was 1,799.08 requiring six parking spaces and that the second floor dwelling would require two parking spaces. (R. 153). This calculation is exactly:the same as the area shown on the first floor of the as -built survey which Mr. LeDoux signed and submitted on behalf of LeDoux and LeDoux in support of the variance application. (R. 145, 157). There is, therefore, no material question that Mr. and Mrs. LeDoux are: required to provide eight off-street parking spaces as they have repeatedly promised. The plaintiff is not required to show either irreparable injury or the lack of an adequate remedy atilaw when a statute specifically authorizes injunctive relief. Carroll v. El Dorado Estates Division No. 2 Association, Inc., 680 P.2d 1158, 1160 (Alaska 1984); Vogler v. Fairbanks North Star Borough, 635 P.2d 462, 464 (Alaska 1981). For example, this court has in the past sustained an injunction requiring compliance withiBorough platting 1 regulations where injunctive relief was authorized by statute. Vogler v. Fairbanks North Star Borough, 635 P.2d at 464. Likewise, an injunction enforcing Borough off-street parking regulations has been sustained by this court, based solely on proof of a continuing violation. Miller v. City of Fairbanks, 509'P.2d 826, 830 n.13 10 (Alaska 1973). In the present case, the legislature! has specifically authorized and required the Kodiak Island Borough to enact zoning regulations like the one at issue in this case. AS 29.40.040(a)(1). The statute also requires the Superior Court to grant an injunction upon "a finding of a violation or threatened violation..." AS 29.40.190(a). The Borough has also enacted an ordinance which requires the Superior Court to issue an injunction upon proof of the violation of its zoning regulations. The zoning :code specifically i requires the court to issue an injunction upon proof of an existing violation of the code. 17.75.030. Penalties and remedies... (a) Notwithstanding the availability of any other remedy, the Borough or any aggrieved person may bring a civil action to enjoin any violation of this title, any order issued under 17.75.010(a), or any term or condition of a conditional use, variance, or other entitlement issued under this title...An action for injunction under this section may be brought notwithstanding the availability of any other remedy. Upon application for iniunctivelrelief and the finding of any existing or threatened violation, the Superior Court shall enioin the violation. KIBC 17.75.030(a) (emphasis added). There is no material issue concerning the fact that Mr. and Mrs. LeDoux are required to provide off-street parking based upon the conversion of the residence into a professional office building. They have not done so. The fact that they park their cars on someone else's property is completely irrelevant. Every business is legally required to provide its own off-street parking. The Superior Court judgment issuing an injunction requiring off - 11 street parking was specifically required by ordinance. both statute and B. The Off -Street Parkins Regulations Are Legitimate and Enforceable. Mr. and Mrs. LeDoux make a rather general challenge to the validity and enforceability of the off-street plarking regulations on pages 10-11 of the appellants' brief. These arguments hardly merit a response. It is clear from overwhelming precedent, however, that off-street parking requirements are a legitimate and enforceable exercise of the municipal zoning power. Numerous courts have held that I off-street parking provisions are reasonably related to the legitimate governmental purpose of eliminating traffic congestion due1,to'on-street parking and enhancing traffic safety by removing carsifrom the streets of the municipality. Adar v. Incorporated Village!ofiLake Success, 454 N.Y.S.2d 262, 263 (App. Div. 1990); Zilinskv v. Zoning Board of Adiustment, 521 A.2d 841, 844 (N.J. 1987). 1 The question is not whether the ordinance will work in every circumstance, but whether there are conceivable circumstances underiwh'ich the design features will advance the general welfare. 521 A.2d at 844. The purpose of off-street parking requirements is to advance the legitimate municipal interest in decreasing traffic congestion since vehicles which would otherwise park on the streets are required to park on the proposed off-street site. Wawa Food Market v. Planning Board of the Borough of Stiip Bottom, 545 A.2d 786, 789 (N.J. Super. 1988); See, Annotation, ['Zoning: Residential Off -Street Parking Requirements," 71 ALR 4th 529 1(1989). 12 Mr. and Mrs. LeDoux argue that "the courts will not enforce zoning regulations which are needless orioppressive." The cases cited in support of this questionable! proposition are completely irrelevant.' Remarkably, none of the cases cited by Mr. and Mrs. LeDoux on this point involve enforcement of zoning regulations. Mr. and Mrs. LeDoux also argue that the court has required them to build a useless parking lot, or has deprived them of the use of their property.' This argument is completely misleading. Mr. and Mrs. LeDoux are allowed to use the propertyas1a residence as it has been used in the past. Mr. and Mrs LeDoux can take more ' For example, Hobbs v. Smith, 493 P.2d 1352 (Col. 1972), stands for the proposition that business and residential uses may be enjoined if they constitute a nuisance to an adjoining property owner, even where the land use involved does not violate a local zoning ordinance. 493 P.2d at 1354. In the other three cited cases, the courts refused to require an injunction for the violation of a private restrictive covenant where the damage to adjoining property owners was inconsequential compared to the property destruction required by an injunction. Gilpin v. Jacob Ellis Realties, Inc., 135 A.2d 204, 209 (N. J. Sup. 1957); Varner v. Aboussie, 397 P.2d 494, 496 (Okla. 1964); Hovt v. Geist, 364 S.W.2d 461, 464 (Tex. App. 1963) (inconsequential business use of residential premises did not violate a private restrictive covenant). The cited case of City of Omaha v. Cutchall, 114 N.W.2d 6 (Neb. 1962), is merely an application of the recognized test that zoning regulations are to be upheld against a due process challenge unless they unreasonably and arbitrarily deprive the owner of substantial use and value of the property. The Nebraska court in that case held that the zoning of the owner's property by which the lots involved were placed in two zoning districts, one commercial and one residential, separated by a diagonal line drawn through the lots, rendered them generally unfit for use in either zoning district, and consequently compelled the conclusion that the regulation was unreasonable, arbitrary, and void. ;114 N.W.2d at 12- 13. This case does not call into question a court's authority to enforce otherwise valid zoning regulations like the off-street parking requirement in this case. 13 1 1 1 1 energetic steps to redesign the property to build a safe parking lot if that is their desire. Judge Madsen's order also allows them to pursue their application for use of an alternate parking location if that application has any merit. It is well established that a governmental entity may restrict the use of land without 1 compensating the landowners for reductions in the value of the property or for the fact that they may be precluded from using their property in a particular manner. Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293, 1297-98 (Alaska 1982). 1 The LeDouxs' argument, however,) points out the contradiction inherent in their position. Mr. and Mrs. LeDoux presented the parking plan in support of their application to use the residence as a professional office. (R. 145, 157). The Planning and Zoning Commission could not have granted the application if Mr. and Mrs. LeDoux had honestly told them that no parking lot could be built. The Superior Court's judgment leaves Mr. and Mrs. LeDoux with the same legal decision they had after the 1 1 Planning and Zoning Commission decision. Mr. and Mrs. LeDoux must either provide the off-street parking required by law or continue to 1 use the property as a residence. 1 It is clear from prior decisions that this court will not hesitate to enforce valid land use regulations including off-street parking requirements. Voaler v. Fairbanks North Star Borough, 635 P.2d at 464; Miller v. City of Fairbanks, 509 PI2d at 830 n.13. Mr. and Mrs. LeDoux have not raised any serious challenge to the validity of the off-street parking requirements in this case. The 14 Borough is clearly entitled to a summary judgment requiring Mr. and Mrs. LeDoux to provide off-street parking. III. THE LEDOUSS' DEFENSES ARE BARRED BY ESTOPPEL AND RES JUDICATA A. Equitable Estoppel The general elements required for the application of the doctrine of equitable estoppel are (1) the assertion of a position by conduct or word, (2) reasonable reliance on that assertion by 4 another party, and (3) resulting prejudice. Municipality of Anchorage v. Higgins, 754 P.2d 745, 748 (Alaska 1988). Each of these elements is established with respect to lithe LeDouxs' promise to provide a parking lot. i First, Mr. and Mrs. LeDoux and thleir predecessors in interest have on numerous occasions asserted the position that they will provide a parking lot on the property. The variance application was accepted "subject to submittaliof a parking plan by October 23, 1987." (R. 142). As a result of this requirement, Kurt LeDoux and "LeDoux and LeDoux" submitted an as -built survey containing a plan for eight parking spaces on the' property stating the plan was for the "proposed use of real property for combination office and upstairs apartment." (R. 145, 157). :Mt. LeDoux provided a letter on the stationary of "LeDoux and LeDoux" stating, "I therefore need to go forward with a proposed parking lot behind the house. . .If the backyard is used a parking lot,ia six foot fence would be erected along the parking lot between' 217 Upper Mill Bay Road and 219 Upper Mill Bay Road." (R. 149). At the hearing before the Planning and Zoning Commission, Toby Cook 'stated that the 15 parking alternative using the adjoining church property was not possible. (R. 159). When Mr. LeDoux obtained zoning compliance for the property on February 24, 1988, he certified the following parking requirements: "eight 8' X 20' spaces' with bumper guards." (R. 169). Second, it is undisputed that the Kodiak Island Borough staff and the Planning and Zoning Commission) relied upon the defendant's promises to provide a parking lot. The staff report recommending the variance incorporated the parking plan which had been submitted by Mr. LeDoux. (R.153, 157). Based on Mr. Cook's testimony and the staff recommendation, the Planning and Zoning Commission granted the variance relying on the parking lot proposal. (R. 160). In addition, the staff approval of theizoning compliance permit for occupation of the property was granted upon Mr. LeDoux's certification that the parking spaces would be pr vided. (R. 169). Third, it is clear that the reliance upon Mr. LeDoux's promises resulted in prejudice to the Kodiak Island Borough and to the public which it represents. As argued above, the Kodiak Island Borough Code clearly requires off-street parking to be provided for a professional office building. Off-street parking requirements are intended to reduce congestion and enhance, traffic safety by providing for orderly traffic flow. The defendants' assertions that they would provide a parking lot resulted in the giant of a variance which otherwise could not have been accepted by the Planning and Zoning Commission. 16 B. Res Judicata. The doctrine of res iudicata provides that a final judgment when entered on the merits is an absolute bar to a subsequent action between the same parties or those in privity with them upon the same claim or demand. Drickerson v. Drickerson, 546 P.2d 162, 169 (Alaska 1976). The judgment bars relitigation of the grounds for or defenses to recovery that were available to the parties regardless of whether they were judicially determined. 546 P.2d at 169, n. 16. The doctrine of res iudicata applies to adjudicative determinations made by administrative agencies. Jefferies v. Glacier State Telephone Company, 604 P.2d 4, 8 (Alaska 1979); Sublett v. Commercial Fisheries Entry Commission, 773 P.2d 952 (Alaska 1989). In Sublett, the applicant for a limited entry permit lost an administrative hearing in 1978 on his claim that unavoidable circumstances prevented him from participating in the fishery as a gear license holder. In 1985, Sublett was advised that he might be entitled to other points based on economic dependence and availability of alternative occupations. This (court held that Sublett was not authorized to appeal the 1985 determination on the basis that his past participation points were wrongfully denied because that claim had been finally adjudicatedlaglinst hien in 1978. The court clearly adopted therule that res iudicata bars a collateral attack on an agency decision made after an adjudicatory hearing. 773 P.2d at 954. The same result should apply in the1 p resent case. The 17 f Planning and Zoning Commission made a final determination concerning the variance application after a public hearing on November 18, 1987.' (R. 158-60). Mr. LeDoux was informed of that decision by a copy of the letter addressed to Toby Cook who was the agent for the applicant. (R. 161-63).. The decision was clearly based on the parking plan which Mr. LeDoux had previously ;submitted as part of the application process. (R. 145, 157). No appeal was taken from the Planning and Zoning Commission decision. The Planning and Zoning Commission decision was a final decision of that agency issued after a full public hearing. The decision was directly based upon the submission of the parking plan by Mr. and Mrs. LeDoux. Relitigation of the parking requirement is not allowed. III. A STAY OF PROCEEDINGS IS COMPLETELY UNNECESSARY, Mr. and Mrs. LeDoux submitted an application to the Planning and Zoning Commission for an alternate parking location on November 10, 1989. The application was denied on December 20, 1989. (R. 59-61). Immediately prior to the hearing on the Borough's summary judgment motion, Mr. and Mrs. LeDoux submitted a document entitled "Reply to Plaintiff's Response to Defendants' Cross Motion for Summary Judgment and Motion to Stay Proceedings." (R. 52). The defendants requested a stay "pending the resolution of the planning and zoning process. . ." The Borough agrees with Mr. and Mrs.I LeDoux that the denial of a stay of proceedings should be sustained upon review unless the appellate court determines that an'abuse of discretion 18 i has occurred. Brief of Appellants at 11. This court will reverse a ruling for abuse of discretion only when left with a definite and firm conviction, after reviewing the whole record, that the trial 1 court erred in its ruling. Betz v. Chena Hot Spring Group, 742 P.2d i 1346, 1348 (Alaska 1987). In the present case, the trial court decision to deny a stay of proceedings wasicorrect because the summary judgment entered did not interfere with agency proceedings and the grant of a stay would have resulted in undetermined delay. The Superior Court's decision implicitly denying Mr. and Mrs. LeDoux's application for a stay was entirely correct because the summary judgment in this case does not interfere with the administrative proceedings in any way. The policy behind the doctrine of primary jurisdiction is to "coordinate the work of the courts and administrative agencies; therefore the question whether a court should defer depends on the unique facts of every case." Ehredt v. Dehavilland Aircraft Company of Canada, 750 P.2d at 446, 450 (Alaska 1985). For example, in the Ehredt'cae the question of law was the construction of an insurance contract, uniquely suited to judicial resolution. The court held that the Superior Court did not abuse its discretion in refusal to grantlthe stay because no action had been taken in a related workers compensation proceeding. 705 P.2d at 450. The question of law before the Superior Court in this case I was whether the LeDouxs are required to provide an off-street parking lot for their professional office building. This question depends upon the construction of the statutes and Borough ordinances 19 cited above, a matter uniquely suited to judicial resolution. The question before the planning commission was whether Mr. and Mrs. LeDoux had provided a suitable alternate parking lot within six hundred feet of their office building. KIBC17.57.030. This question depends on a review of local land useiconditions; a matter which is expressly committed to the discretion of the agency. Mr. and Mrs. LeDoux have not indicated any way in which I the grant of summary judgment has affected theiriapplication for an alternate parking location. The summary judgment entered, very carefully clarifies that the injunction requiring the defendants to discontinue the use of the residence as a professional office building does not become effective until a final decision of the Board of Adjustment or any timely court appeal concerning the application for an alternate parking location. The grant of summary judgment therefore just has no substantial effect on the administrative relief Mr. and Mrs. LeDoux are now pursuing. The summary judgment entered by the court was also correct because a stay of proceedings would have resulted in undetermined delay. In the Ehredt case, this court noted thatthedefendant had waited until six weeks before the trial date toyrequest a stay based on pending administrative proceedings. 705 P.2d at 450. In a similar case, on a trespass claim, the defendantimoved for a stay i one month prior to trial pending the outcome of, al investigation by the Bureau of Land Management of the validity, of the plaintiff's mining claim. Alveska Pipeline Service Companyly. Anderson, 629 I P.2d at 512, 524 (Alaska 1961). This court found it significant 20 that at the time of motion the Superior Courtihad no indication as to when a decision on the validity of the mining claim would be forthcoming, concluding that the Superior Court action refusing to grant a stay was appropriate in the circumstances. 629 P.2d at 526. The possibilities of delay based upon Mr. and Mrs. LeDoux's motion in the present case are more substantial. Mr. and Mrs. LeDoux did not submit an application for;anialternate parking location until nearly one month after summaryijudgment briefing in this case had been completed. The initial decision by the Planning and Zoning Commission denied their application for an alternate parking location. Their motion for a stay on the morning of the summary judgment hearing was based exclusively oIn their desire to appeal the Planning and Zoning Commission decision. Mr. and Mrs. LeDoux did not support their motion with any estimate of the time which would be necessary for them to pursue the appeals they desired. It is apparent from their) argument to this court that they intend to appeal any Superior Court decision denying an alternate parking location, no matter how ironclad that decision may be. See Brief of Appellants at 12 fn.9. It should be apparent from a review of briefing in this matter that the LeDouxs would I pursue such an appeal even if their was no legal or factual support for it. The Superior Court decision denying an unlimited stay of proceedings was not an abuse case was clearly entitled to law. of discretion; the Borough in this an immediate judgment as a matter of There was no ground to believe that any administrative 21 appeal concerning the defendants' application for an alternate parking location would be merged with the Superior Court action in this case. The Kodiak Island Borough is not aj party to such an appeal because the Kodiak City Council is thelBoard of Adjustment within its boundaries. KIBC 17.80.010. It is also apparent that Mr. and Mrs. LeDoux have chosen to file their administrative appeal in Anchorage, therefore making consolidation with this case unlikely. See Brief of Appellants at 12 fn.8., I The Borough acquiescence in Mr. and Mrs: LeDoux's pursuit of their request for alternate parking was entirely an act of grace. The Borough could have pursued the remedy of terminating the use of the premises as a professional office building until parking was provided. The court's judgment allowing Mr.i and Mrs. LeDoux to I pursue their alternate parking location based uponitheir request was more favorable than they legally deserve. V. THE KODIAK ISLAND BOROUGH IS THE P D ING PARTY. The "prevailing party" for the purpose of an award of attorney's fees is the party who prevails on the main issues in the case. DeMoski v. New, 737 P.2d 780, 787 n.7 '(Alaska 1987). The Supreme Court will reverse a trial court determination of the prevailing party only upon finding of an abuse of discretion. Buov v. ERA Helicopters, Inc., 771 P.2d 439, 448 (Alaska 1989). The party attacking the designation is required' to show that the Superior Court's decision is manifestly unreasonable. Apex Control Svstems,Inc. v. Alaska Mechanical, Inc., 776 P.2d310, 314 (Alaska 1989). 22 T u f There is overwhelming evidence that the Kodiak Island Borough was successful on the "main issues" 4n this case. First, the Kodiak Island Borough established that the equitable defenses raised by Mr. and Mrs. LeDoux were without merit. (R. 21-32). Mr. and Mrs. LeDoux did not raise any factual issue in response. (R. 36- 39, 42-43). Second, the Kodiak Island Boroughlf iced Mt. and Mrs. LeDoux to hire a contractor to study the construction of a parking lot. (R. 40-41). Prior to the time when this lawsuit began, the Kodiak Island Borough had repeatedly demanded construction of the parking lot. The LeDouxs had also repeatedly promised to provide the lot but had done nothing to begin construction. (R. 172-77). Third, the Kodiak Island Borough forced Mr. and Mrs. LeDoux to submit an application for an alternate parking location. No application for an alternate parking location was filed prior to I the Motion for Summary Judgment in this case., Mk. LeDoux tried to get the Superior Court to decide the issue. (R. 37-38). The Borough pointed out in reply that the issue was entrusted to the primary jurisdiction of the Planning and Zoning Coi ission. (R. 49). Finally, on November 10, 1989, Mr. and Mrs. 'LeDoux submitted an 1 l application to the Planning and Zoning Commission for an alternate parking location. ! ! Fourth, the Kodiak Island Borough won ! a judgment which requires Mr. and Mrs. LeDoux to provide off-street parking. (R. 62- 63). This is exactly the relief the Borough requested in its 1 complaint. (R. 3). The LeDouxs' claim of victorylin this matter is 23 1 •i completely hollow. The Kodiak Island Borough is clearly the prevailing party. The Superior Court did not abuse its discretion in this determination. VI. PRE ATTORNEY'S FEES AWARD WAS JUSTIFIED BECAUSE THE LEDOUKS' DEFENSES WERE FRIVOLOUS. The decision to award attorney's' fees rests in the discretion of the trial judge and is reviewable on appeal only for an abuse of unreasonable. (Alaska 1989) discretion, that is when the award is manifestly Thorstenson v. Arco Alaska, Inc., 780 P.2d 371, 376, The Supreme Court will not ,reverse an award of attorney's fees unless the lower court abused its discretion by compensating excessive attorney hours or awarding an overly high percentage of an otherwise reasonable fee. O.K. Lumber Co., Inc. v. Providence Washington Insurance Company, 759 P.2d at 528. Full attorney's fees may be awarded, td punish frivolous claims. Crawford and Company v. Vienna, 744 P.2d 1175, 1178 n. 4 (Alaska 1987). The court may award full or substantially full attorney's fees upon a finding that the losing party acted in bad faith in asserting a claim or defense. Alaska Northern Development, Inc. v. Alveska Pipeline Service Company, 666 P. 2d 33, 42 n.9 (Alaska 1983). Even in the absence of bad faith or vexatious conduct, this court has affirmed awards of sixty to eighty percent of the full attorney's fees incurred. Bovee v.'Lasage, 664 P.2d 160, 165 (Alaska 1983) (court granted 85,000.00Jout of $7,118.00 demanded); Burnet v. Dresser Olympia Division of Dresser, Inc., 660 P.2d 846 (Alaska 1983) (court awarded $6,000.00 out of $9,818.50 24 expended); Hausam v. Woodrich, 574 P.2d 805, ($9,680.62 awarded; award equalled eighty-six bill). In the present case, the Superior Court B11 (Alaska 1978) percent of total awarded attorney's fees in the sum of $3,350.00 (R. 118), out of $4,547.50 expended by the Borough. (R. 66). The award approximates seventy-four percent of actual attorney's fees incurred. i This award was justified because the defendants submitted no factual support for the defenses they asserted. Because of the various equitable defenses, the Borough was; required to submit extensive briefing in its Motion for Summary I Judgment. A major portion of this litigation could have been avoided if the defendants had pleaded only those defenses which they could honestly support. When it became apparent that the defendants had np support for their defenses, they first tried to convince the Superior Court to take jurisdiction of the alternate parking issue which had been clearly entrusted to the authority of the planning commission. After this tactic also failed, they made a last minute request for a stay of proceedings to pursue their administrative remedies. The Superior ,Court did not enter a full award of this record. The attorney's fees, but it could have done so on attorney's fees award should be sustained because it did not constitute any abuse of discretion. VII. SUMMARY AND CONCLUSION , The uncontested facts establish that;Mr. and Mrs. LeDoux are required to provide eight off-street parking spaces in order to 25 ,. . use their property as a professional office.' Mr. and Mrs. LeDoux are barred from denying the off-street parking requirement in view of the numerous previous assertions by themselves and their predecessors in interest agreeing to provide alparking lot. Mr. and Mrs. LeDoux are barred from relitigating the parking lot question by the doctrine of res iudicata. A last minute stay of proceedings in this matter would have resulted in unnecessary delay. The record supports the Superior Court's decision that the Kodiak Island Borough prevailed on the main issues in this ciase, and that the Borough was entitled to a substantial award of attorney's fees. The court should affirm the Superior Court judgment requiring Mr. and Mrs. LeDoux to provide off-street parking. RA DATED this ,2 3 day of May, 1991,1atKodiak, Alaska. JAMIN, EBELL, BOLGER & GENTRY Attorneys for Defendant 4095\87P.041 26 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODiIAK KURT M. LeDOUX and ) GABRIELLE LeDOUX, ) FILED IN ) Alaska TrialCourla Appellant, ) Third Judlclal OIstrlcl at Ifodlak Vs • ) AUG 2 3 1991 l KODIAK ISLAND BOROUGH, ) Clork;ofthoTrlalCourta KODIAK PLANNING and ZONING ) COMMISSION, ) 8y DEPUTY ) Appellee. ) j Case No. 3AN-90-5625CI MEMORANDUM DECISION Kurt and Gabrielle LeDoux appeal from the decision of the Kodiak City Council sitting as a board of adjustment which denied the LeDouxs' request to substitute parking alternatives for the off-street parking required by the Kodiak Island Borough Code (KIBC) zoning regulations. The decision of the Board of Adjustment is AFFIRMED. STATEMENT OF THE CASE 1 In 1987, the LeDouxs desired to purchase a residence at 219 Mill Bay Road in Kodiak and convert it to use as a law office. The area was zoned for such uses, but the LeDOUX vs. KODIAK ISLAND BOROUGH - 3AN-90-5625C1 PAGE 1 OF 13 Alaska Court System 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 house was larger than the zoning regulations allowed for the lot. Because there was going to be use of the structure, the LeDouxs the zoning regulations. Since the structure a change in the sought a variance from was being altered f'om a residential building to a law office, the Borough required the LeDouxs to present evidence that they intended to comply with the KIBC parking regulations before the berough would grant a variance for the over -size structure. I The code calls for law offices to provide and maintain one parking space for each 300 sguare.fmet of gross floor area, but not fewer than three spaceS. KIBC 17^57.010' 17.57.020(2)(a). In the LeDouxs' case, this means seven spaces. After consultations with borough officials, the LeDouxs submitted a plan to build a parking lot in the back yard that would provide the required number of spaces. Based on this assurance, the variance was granted, by the planning and zoning commission. The LeDouxs converted the bnildiug' into a law office ' ! and have been using it as such since at least January of . / 1988. They have not built the parking lot. Responding to a notice of non-compliance from the borough, Kurt LeDoux LeDOUX vs. KODIAK ISLAND BOROUGH - 3A0:•90-5625CI PAGE 2 OF 13 Alaska Court System 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 applied for a zoning compliance permit in February of 1988. At that time, he assured the borough that the parking lot would be built by October 18, 1988. The LeDouxs were formally ordered by the borough on October 27, 1988 to begin construction of the lot indicated in the plan they had filed. The order required construction to begin within 30 days and to be completed within 90 days. The LeDouxs did not comply and the borough filed a civil suit on February 28, 1989 seeking an injunction requiring them to discontinue use of the structure until the parking lot was completed. That suit is presently on appeal following the granting of a Motion for Summary Judgment in favor of the borough. The civil suit has no bearing on the issues in this administrative appeal. On November 10, 1989, Kurt LeDoux sent a letter to Linda Freed of the Borough Planning and Community Development Department asking for permission to lbcaite his required off-street parking on Dr. Bob Johnson's. parking lot. His letter cited KIBC 17.50.030, apparently in ',error and likely referring to KIBC 17.57.030, and specifically requested that the planning commission make a factual finding that it is impractical to locate the required. parking on his LeDOUX vs. KODIAK ISLAND BOROUGH - 3AN;90-5625CI PAGE 3 OF 13 Alaska Court System 1 2 3 4 5 6 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 property. Be noted that Dr. Johnson's property is approximately 200 feet from this pzopezty. In a postscript, LeDoux asked that the commission also permit him, in the alternative, to locate the parking at the Community Baptist Church, which is directly across Mill *Bay Road from the Ledooxo` property. The planning and zoning commission met on December 20, 1989 and denied the LeDouxs' request. At the hearing, Kurt LeDoux also suggested as an alternetive, a public parking lot downtown as a situs of the off-street parking. The commission found that it was impractical to build the parking lot in the back yard, but also fouodltbat the Johnson property was not in a direct line~of-oigbtlwitb the LeDoux property; that LeDoux could not get an easement for the Johnson property; and that the request to allow alternate parking on the Johnson property was not a viable plan. At the LeDouxs' request, the commission adopted additional factual findings on February 21, 1990 to the effect that the LeDouxs did not obtain the permission of the Community Baptist Church to submit their property as a viable parking alternative; that no variance to the parking requirement had been requested; that the | 'I/eDouoS did not I,eDOU}{ vs.KODIAK ISLAND BOROUGH - 3�\09O 5625CI � . PAGE 4 OF 13 Alaska Court System 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 request the commission to consider the lot in is not parking lot. The LeDouxs appealed the decision and zoning commission to the Kodiak City downtown parking a timely manner; and that, the ieDouxs' property in the UR -19 Urban Renewal Plan as is the downtown of the planning Council, sitting as a board of adjustment. In their brief on appeal, the LeDouxs again referred to KIBC 17.57.030.1 The LeDouxs argued on appeal before the board of adjustment that the line of sight requirement was frivolous, that there was no reason why the proposed alternate parking lot would not be viable, and that the irequirement that the LeDouxs obtain a permanent easement was unreasonable. The board heard the appeal on June 5, 1990. The appeal was denied and the board issued written findings the next day. The board found that the originally proposed parking lot in the back yard was not impractical. In addition i I to this affirmative finding of practicality, the board found that the planning and zoning commission's finding to the contrary was not supported by substantial evidence. Although a finding of impracticality is a threshold requirement to granting the exception 1 found at KIBC LeDOUX vs. KODIAK ISLAND BOROUGH - 3AN-90-5625CI PAGE 5 OF 13 Alaska Court System 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17.57.030, the board went on to make the following other findings relating to the exception: (1) requiring an easement was reasonable to promote the goal of assuring adequate off-street parking; (2) allowing the LeDouxs to use the public downtown lot as an alternate to providing parking would amount to the granting of a variance; (3) a variance had not been sought; (4) there is substantial evidence to support a finding that the 'Johnson property would not be viable; (5) the LeDouxs had Inot obtained the permission of the church to propose that property as alternative parking; and (6) the public parking lot is not within 600 feet of the LeDouxs' property. The LeDouxs have appealed the decision of the board of adjustment to the superior court. POWERS OF THE BOARD OF ADJUSTMENT The Kodiak City Council sits as the,board of adjustment for disputes within the city boundaries. KIBC 17.100.010 and AS 29.40.050(b). The board of adjustment has powers to hear and decide appeals from the planning and zoning commission on requests for exceptions and variances from the terms of the zoning ordinances. KIBC 17.100.020. The board of adjustment must affirm or reverse the LeDOUX vs. KODIAK ISLAND BOROUGH - 3AN-90-5625CI PAGE 6 OF 13 Alaska Court System 1 2 4 5 6 7 8 9 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 commission, but may make its own findings of fact, based upon the evidence in the record. KIBC 17.100.080(A). STANDARD OF REVIEW Decisions of the board of adjustment are subject to judicial review upon appeal to the superior court. KIBC 17.100.100. The findings of the board of 'adjustment shall not be reversed, if in light of the whole, record they are supported by substantial evidence. KIBC 17.100.100 (accord, AS 29.40.060(b) (appeal to superior court is an administrative appeal heard solely on 'the record before the board of adjustment) and Miners Advocacy Council v. State, DEC, 778 P.2d 1126 (Alaska 1989) cert. denied, I U.S. 107 L.Ed.2d 1033 (1990) (court will accept factual findings of agency on administrative appeal if they are supported by substantial evidence). Where the agency is exercising discretion that has been granted to it, the court will determine only whether there is a rational basis for the exercise of that discretion. State, ABC v. Decker, 700 P.2d 483, 487 (Alaska 1985) (citing Galt v. Stanton, 591 P.2d 4,60, 963 (Alaska 1979)). LeDOUX vs. KODIAK ISLAND BOROUGH - 3ANT90-5625C1 PAGE 7 OF 13 Alaska Court System 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DISCUSSION The LeDouxs have used the word "variance" throughout the litigation except in the document that matters the most, namely their request to the planning and zoning commission. In the LeDouxs' letter of November 10, 1989 to the planning and community development department, the subject matter is described as "Re: Parking variance; 219 Mill Bay Road." However, the content of the letter does not in any way request a variance. Instead, it requests an exception pursuant to KIBC 17.57.030. In their brief on appeal, they stated: The Kodiak Island Borough Code 17.57.030 provides relief when it is impracticable to build on a particular lot . . . Appellants proposed that they be allowed to use Dr. Bob Johnsn's parking lot and they requested a variance Ito use his lot . . ." In appealing to this court, the LeDouxs again refer to variances; indeed, the brief and argument is based solely on variances. See Brief of Appellant at 13 and Reply Brief of Appellant at 6. The position of the borough has been consistent; it argues that the LeDouxs have never requested a variance. Both the planning and zoning commission and the board of LeDOUX vs. KODIAK ISLAND BOROUGH - 3AN1-90-5625C1 PAGE 8 OF 13 Alaska Court System 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 adjustment made specific findings that the LeDouxs never requested a variance regarding anything !other than the original variance for conversion of the, structure to a law office. It is the finding of the board of adjustment that is before this court on appeal, and thel court concludes that there is substantial evidence to support that finding. The request by the LeDouxs specifically states that it is being made pursuant to KIBC 17.5(7].030.1 This provision of the code provides: All parking spaces required under Section 17.57.020 shall be on the same lot as, or a hot adjacent to, the principal building that they service; provided, that if the Planning Commission finds that it is impracticable to locate the spaces on such a lot, it may permit them to' be located on any lot within six hundred feet of the principal building. All parking spaces required under Section 17.57.020 shall be located; in a use district permitting the use which they serve. KIBC 17.57.030. The provision clearly sets forth an exception to the requirements of the code. "An 'exception' within the meaning of a zoning ordinance is a dispensation. permissible where a board of zoning appeals finds existing (those facts and circumstances specified in the ordinance! as sufficient LeDOUX vs. KODIAK ISLAND BOROUGH - 3AN;-90-5625CI PAGE 9 OF 13 Alaska Court System 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 17 18 19 20 21 22 23 24 25 to warrant a diversion Municipal Corporations The code provision to variances, which In this case, in the ordinance from the general ru!le." 8 McQuillin § 25.160, p. 722 I (3rd Ed. 1991). on which the LeDouxs rely is not related are addressed at KIBC 17.66. and circumstances spe i warrant a diversion" the "facts as sufficient to ied are only that the planning commission finds that it is impractical to locate the spaces on the principal lot. However, the ordinance is permissive, nonmandatory. Upon making that finding, the commission has the discretion to allow an exception or not, or to allow the exception with conditions. In this case, the commission exercised that discretion by allowing the exception only if the LeDoiuxs could obtain an easement for the alternative parking.) The board of adjustment found that the condition was treasonable. The court agrees with the board that this was a rational exercise of the commission's discretion. The court notes that the only evidence the LeDouxs presented regarding their right to park on Dr. Johnson's property wasian unsigned lease that was subject to termination upon six months notice. There was absolutely no evidence presented regarding the LeDOUX vs. KODIAK ISLAND BOROUGH - 3AN,-90-5625C1 PAGE 10 OF 13 Alaska Court System 1 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Baptist church property except LeDoux's testimony about a gentlemen's agreement. The transcript of the planning and zoning commission hearing makes it abundantly clear that ,the members of the commission were concerned about granting an exception that might be temporary or would need constant enforcment. The commissioners were concerned about what would happen if the LeDouxs sold their property or if the agreements with Dr. Johnson or the church terminated. Dr. Johnson, since the commission proceeding, has sold his property without executing the lease. There is nothing in the record regarding the new owners or their willingness to enter a similar agreement. Therefore, issues' concerning the Johnson property are now moot. The court concludes that the requirement of a permanent easement was rationally related to the aims of the zoning plan and the commission did not abuse its discretion in imposing such a requirement. The court notes that the parking spaces referred to in KIBC 17.57.020 and .030 are subject to the general provision of KIBC 17.57.010: The owners and occupants of a principal building shall be jointly and severally responsible for LeDOUX vs. KODIAK ISLAND BOROUGH - 3AN'90-5625CI PAGE 11 OF 13 Alaska Court System 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 providing and maintaining the off-street parking serving that building. The off-street parking required by this chapter for a principal building shall be maintained in accordance with'his chapter continuously during the life of the building. (emphasis added). Neither a lease subject to termination at will (even if it were executed), nor a gentlemen's agreement provides even minimum assurance that parking will be maintained during the life of the building. Furthermore, there is nothing in the agreements as proposed that suggests the LeDouxs would be responsible for maintenance. This provision also points out a fatal flaw with the LeDouxs' proposal to use the downtown parking lot. The public parking lot is not provided by or maintained by the LeDouxs. It is thus inmaterial whether it is within 600 feet of the LeDouxs' property. The public parking lot does not meet the conditions set forth for the exception found at KIBC 17.57.030. The LeDouxs also argue that the borough was estopped from denying the exception. It is not the function of the board of adjustment to consider equitable arguments such as estoppel and the issue is not properly raised on administrative appeal. The estoppel argument is, therefore, LeDOUX vs. KODIAK ISLAND BOROUGH - 3AN-90-5625CI PAGE 12 OF 13 Alaska Court System 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not considered by this court. Fields v.City of Kodiak, 628 P.2d 927, 930-31 (Alaska 1981). Finally, the court concludes that there is substantial evidence that supports the finding of the board of adjustment that the proposed parking lot in the baCk yard was not impractical. The clearest evidence on this matter is Kurt LeDoux's repeated assurances before the commission, the board, and this court that he will bUild the lot if he does not prevail. The decision of the board of adjustment is therefore AFFIRMED. DATED this 23rd day of August, 1991 at Kodiak, Alaska. DONALD D. OPW OD SUPERIOR COURT JUDGE corn!/??/ a copy of life acoft was :wined to each of the following at their address of record:4. 2) Deputy Cie agf—c-er LeDOUX vs. KODIAK ISLAND BOROUGH - 3AN-90-5625CI PAGE 13 OF 13 Alaska Court System • - IN T SUPERIOR COURT FOR THE STI, _ OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE KURT M. LeDOUX and GABRIELLE LeDOUX, Appellantisj, vs. CITY OF KODIAK, Appellee(e). SUFE OF ALASKA rtHISS O 8DUGT APPEALS DIVISION MAY �„a,gr darts al th el t Courts Case No. 3AN-90-5625 Civil ORDER The above -captioned case is hereby Judge Donald D. Hopwood Court Appeals Division for all purposes. DATED at Anchorage, Alaska, th May r 1991. - Of assigned to the Superior ! 22nd day of Brian C. Shortell Presiding Judge' I certify that on 5/22/91 copies of the above Were sent to: LeDoux; Fries; Stephens; Coe (6/23/89) t2adA 6c( 41( CtDID, eDOUX 8 LeDOUX ATTORNEYS AT LAW 219 MILL BAY ROAD KODIAR, ALASKA 99615 (907) 486-4082 ATTORNEYS FOR APPELLANTS IN THE SUPERIOR COURT FOR THE STATE OF THIRD ALASKA JUDICIAL DISTRICT AT ANCHORAGE URT M. LeDOUX and GABRIELLE LeDOUX, Appellants, ) ) ) ) vs. ) CITY OF KODIAK, ) Appellees. ) ) Case No. 3AN-90-5625 Civ. matter; Upon ORDER c w m mu nTHIRU ighit T Si11TE rtmispw,3IOH a review of the applicable law and facts in this IT IS HEREBY ORDERED that Appellants/4 Motion to Supplement the Record is hereby GRANTED. DONE this a day of May, 1991. uperior Court Judge I certify that oa :51 aa1 copy of the above was mailed tc conch 0: 0 cl,e fQllowi ut their udcxzaeee of ,record; Q 601,41477760;:i c; .94/011i414. I certify that on the I day o April, 1991, I served a true and correct copy of the above on all attorneys of recordbyp,n,f M. LeDoux Deputy ilk iledoux.3\order.7 Pad LeDOUX & LeDOUX ATTORNEYS AT LAW 219 MILL BAY ROAD KODIAK, ALASKA 99615 (907) 486-4082 ATTORNEYS FOR APPELLANTS KURT M. LeDOUX, IN THE SUPERIOR COURT FOR THE STATE OF'ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE LeDOUX and GABRIELLE Appellants, vs. CITY OF KODIAK, Appellees. ) Case No. 3AN-90-5625 Civ. matter; ORDER glAiE ASPF o vie oN DIGS WO hien 1 7nNi1 Upon a review of the applicable law and facts in this IT IS HEREBY ORDERED that Appellants' its Reply Brief one day late is hereby GRANTED. DONE this 20 day of May, 1991. Motion to file Superior Court Judge I certify that on the # day of April, 1991, I served a true and correct copy of the above on all attorneys of record. tha..t on +•.o above was mailed s .>:• foricwing tbeit of record;61,-K-_ Ce.e; 1 -envy •ledoux.3 order.8 SIZIh CAD, te) APPEALS DIVISION -' ALASKA COURT SYSTEM 303 K Street ---Anchorage, AK99501.2083 LINDA FRIES, DIRECTOR 710 MILL BAY ROAD KODIAK, AK 99615 II�Ir�LIrrJL��„IIiIJidLmlliLl�J�J�J��II MATTHEW D. JAMIN C. WALTER EDELL• JOEL H. BOLGER• DIANNA R. GENTRY ALAN L. SCHMITT WALTER W. MASON• DUNCAN 5. FIELDS MICHAEL ARAUJO •ADMITTED TO ALASKA AND WASHINGTON BARS ALL OTHERS ADMITTED TO ALASKA BAR JAMIN, EBELL, BOLGER & A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET KODIAK, ALASKA 99615 FACSIMILE: (907) 486-6112 TELEPHONE: (907) 486-6024 REPLY TO KODIAK OFFICE March 28, 1991 Linda Freed, Director Community Development Department Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 G ENTRY RE: Kurt and Gabrielle LeDoux v. City of Kodia Our File No. 4702-67 Dear Linda: SEATTLE OFFICE: 300 MUTUAL LIFE BUILDING 605 FIRST AVENUE SEATTLE. WASHINGTON 98104 FACSIMILE: (200) 623.7521 TELEPHONE: (206) 622-7634 Please find enclosed a copy of the brief of appellee filed on behalf of the City of Kodiak by Melvin Stephens. 1I believe that Mr. Stephens did an excellent job of focusing thelargumentswhich support the decisions by the Planning and Zoning Commission and the Kodiak City Council. Mr. and Mrs. LeDoux will have an opportunity to file a reply brief and thereafter the matter willl be submitted for decision by the Superior Court. Do not hesitate to contact me if you have any questions. Sincerely yours, JAMIN, EBELL, BOLGER &GENTRY JHB:dlm Enclosures cc: Honorable Jerome Selby, Mayor Mr. Jack McFarland, Presiding Officer Kodiak Island Borough Assembly 4702\677,.007 IN THE SUPERIOR COURT FOR THE STATE 1 ( KURT M. LEDOUX and GABRIELLE LEDOUX VS. THIRD JUDICIAL DISTRI AT ANCHORAGE ) ) Appellants, ) ) ) ) CITY OF KODIAK, ) ) Appellee. ) Case No. 3AN-90-5625 CI OF ALASKA ion 1ti4A 2? 19c1 vbD; K, ALASKA APPEAL FROM THE KODIAK CITY COUNCIL SITTING AS A BOARD OF ADJUSTMENT BRIEF OF APPELLEE Filed in the Superior Court for the State of Alaska at Anchorage this day of March, 1991. Melvin M.LStephens, II A Professional Corporation P. O. Box/ 1129 Kodiak, Alaska 99615 Counsel for Appellee MELVIN M.i STEP 34 S. II Deputy Clerk MELVIN M.STERRENE.11 A NORMI0..LC0M10MTI0II ATTORNEY AT LAW I04 CATER Ave.. SIOlt o r. O. aox 112* KODIAK. ALASKA 99615 (907) 486.3143 TABLE OF CONTENTS Pacie(s) TABLE OF CONTENTS i TABLE OF CASES, STATUTES, RULES AND OTHER AUTHORITIES . . CODE PROVISIONS PRINCIPALLY RELIED UPON ISSUES PRESENTED FOR REVIEW STATEMENT OF THE CASE I. FACTUAL BACKGROUND II. COURSE OF PROCEEDINGS STANDARD OF REVIEW 2 2 4 ARGUMENT 9 I. THE PLANNING AND ZONING COMMISSION'S DECISION WAS A PROPER EXERCISE OF DISCRETION 9 II. THE DOWNTOWN PARKING LOT IS IRRELEVANT TO THIS APPEAL 13 III. THE FINDINGS OF THE BOARD OF:ADJUSTMENT ARE SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD . . 15 IV. THE LEDOUXS ARE NOT BEING REQUIRED TO BUILD AN UNSAFE PARKING LOT 17 CONCLUSION - i 18 MELVIN M.STEPNENS.❑ A fe.n210WAL COT?ORATIOK ATTORNEY AT LAW 164 Cialo Avg.. Sum 202 /.0.902 ItER KODIAK. ALASKA 99615 (907) 496.3143 TABLE OF CASES. STATUTES. RULES AND OTHER AUTHORITIES. Paae(s) CASES: Earth Resources Co. v. State, Dept. of Revenue, (Alaska 1983) 665 P.2d 960 8 Galt v. Stanton, 591 P.2d 960, 963 (Alaska 11979) Hamilton v. Lotto, 397 P.2d 980 (Alaska 1965,) 8 16 Kelly Supply Company, Inc. v. City of Anchorage, 516 P.2d 1206, 1211 at n. 5 (Alaska 1973) i 16 Nordic Construction Co. v. Whitney Bros. Plumbing & Heating, Inc., 441 P.2d 122 (Alaska 1968 j 12 Storrs v. State Medical Board, 664 P.2d 547' denied 464 U.S. 937 (1983) 554 (Alaska), cert. 14 Veal v. Newlin, Inc., 367 P.2d 155 (Alaska 1961) STATUTES AND CODE. PROVISIONS: KIBC 17.36.030 KIBC 17.57.010 KIBC 17.57.020 KIBC 17.57.020 A 2 a KIBC 17.57.030 12 2 3 8, 15 RULES: Appellate Rule 508(e) Appellate Rule 510 MELYIN M. STEPHEN5.❑ A P.C.O.IU..L CORPOW104 ATTORNEY AT LAW .a. LIAM An.. 301111 204 P.O.AOK 112' KOOLAK. ALASKA 99815 (907) 486.3143 it 8, 9, 15 18 18 4ELVIN M.STEPHENS.II, i PROCO SIOMAL CORPORATION ATTORNEY AT LAW SACRNZq AYR.. SUM 204 P.0.901 1179 COSMIC. ALASKA 99615 19091 496.2149 i CODE PROVISIONS PRINCIPALLY RELIED UPON KODIAK ISLAND BOROUGH CODE 17.57.010. Off -Street narking required -- In general. In all use districts, from the time a principal building is erected, constructed, established, altered or{enlarged, there shall be off-street parking conforming to this chapter to serve that building. This parking shall be available free of charge for the use of the occupants of the 'building and their employees and patrons. The owners and occupants of a principal building shall be jointly and severally responsible for providing and maintaining the off-street parking serving that building. The off-street parking required by -this chapter for a principal building shall be maintained in accordance with this chapter continuously during the life of the building. 1 { 17.57.020. -Off-street narking -- Number of spaces required. A. For each principal building or use within a principal building, there shall be no less than the !number of off-street parking spaces specified under this section.+ 2. Buildings other than dwellings: a. Bank, office building, professional office, or clinic: one parking space for each three hundred square feet of gross floor area, but not less than three spaces; 17.57.030. Qff-street parking -- Location. All parking spaces required under Section 17.57.020 shall be on the same lot as, or a lot adjacent to, the principal building that they service; provided, that if the planning commission finds that it is ot impractical to locate the spaces on such a l,; it may permit them to be located on any lot within six hundred feet of the principal building. All parking spaces required under Section 17.57.020 shall be located in a use district permitting the use which they serve. MELYIH M.STEPHENS.li APIMIU 40R4CORlOGNON ATTORNEY AT LAW 104 COTU .P[.. SUR[ ZOO P.O. DOI Ili! KOOIAK. ALASKA 99615 (907) 499.9149 ISSUES PRESENTED FOR REVIEW 1. Where the applicable municipal code requires that any off-street parking required with respect to a particular building be maintained for the life of that building, is it an abuse of discretion for the planning and zoning commission to disapprove a parking plan consisting of no more than an unsigned lease under which the required parking spaces would-be located out of sight of the building, which lease could be cancelled on no more than six 2. Must a planning and zoninglcommission accept a property owner's claim that he has the Permanent use of his ) neighbor's parking lot when the property owner admits that the neighbor has refused to grant him that right in writing. 3. Does a map prepared by borough staff in preparation for a planning and zoning commission hearing, upon which there has 1 been drawn a circle showing all property within 600 feet of a particular building, constitute substantial evidence that a public months notice? parking lot falling outside that circle is riot the building? 4. May the provisions of a municipal code which mandate that a certain number of off-street parking 'spaces be provided in connection with the conversion of a residence to an office building within 600 feet of be disregarded simply because there is a public general vicinity of that building? parking lot in the MELVIN M.STEPHENS. 11 A P40rtaal00ALC0At0MR0$ ATTORNEY AT LAW 104 coin ATT.. 911111 ZOO L0.80; 1@9 KOOIAK. ALASKA 99616 (907) 489.3143 STATEMENT OF THE CASE, I. FACTUAL BACKGROUND. In 1987 Mr. and Mrs. Ledoux purchased a single-family residence at 219 Upper Mill Bay Road in Kodiak, Alaska with the intention of converting the ground floor into a law office and the second floor into an apartment. This change in use required a variance from section 17.36.'030 of the Kodiak Island Borough Code because the lot in question was substandard in area and width. (R.7). That variance was granted and is hot at issue in this f ' appeal. In order to convert the building to office use, the Ledouxs were required to demonstrate that they could provide one off-street parking space for each 300 square feet of gross floor area.) A total of eight off-street parking spaces were thus required by the Ledouxs' intended use of the building.2/ They sought no variance from this requirement. Instead, Mr. Ledoux presented the Kodiak Island Borough Planning Commission with a, site plan showing that all of the required parking spaces would be provided by constructing a parking lot in the backyard and assured I , the Commission that there would be no problem in meeting the parking requirements. (R. 47, 78). Only after the variance permitting conversion of the building to office use was granted did Mr J KIBC 17.57.020 A.2.a. Ledoux consult' a J This was later reduced to seven spaces when the second floor apartment was converted to storage space 2 MELYIN M.SnPNENS.A A lloTEISIG1A4 CORPORATION ATTORNEY AT LAW 1Oa CRRm Avl.. Sorra 204 P. 0. 00% '1179 KOOIAK. ALASKA 99615 (907) 496.3143 contractor about actually constructing the parking lot which he had assured the Planning and Zoning Commission would be built. At that time he was told that it would be "rather difficult" to build the parking lot, the total cost of which was estimated to be between $3,000 and $4,000. (R. 78). The Ledouxs/ response to this unpleasant news was to I ignore the off-street parking requirements of; the Kodiak Island Borough Code. They simply proceeded to convert the residence at 219 Upper Mill Bay Road to office space and moved their law practice into it without ever implementing the parking plan they had presented to the Commission. This state of affairs was discovered by the Borough in January of 1988, at which time Robert Pederson, an Associate Planner with the Borough Community Development Department, notified the Ledouxs that their use and occupancy'of the building was in violation of a number of provisions of the Borough Code, including the off-street parking requirements of KIBC'17;57.010. (R. 5-6). In February of 1988 Mr. Ledoux applied for a zoning compliance permit, during the course of which he assured the Borough zoning enforcement authorities that the parking lot and bumper guards reflected on the previously submitted parking plan would be constructed by October 18, 1988. (R.7). Once again, however, the Ledouxs made no effort to construct the parking facilities. Accordingly,on October 27, 1988 Bob Scholze, an Associate Planner whose dutiies included zoning enforcement for the Borough, formally ordered the Ledouxs to begin MELVIN M.STEPHENS.II A P110ib31011RL CORPORATION ATTORNEY AT UAW 104 Coln AY[.. 301111:0O P.0. 401 113• KODIAK. ALASKA 99615 (907) 488.9143 construction of the parking lot indicated in the parking plan which they had filed. Construction was to begin within thirty days and be completed within ninety days of the Ledouxs' receipt of that The Ledouxs ignored the October ;27 order. (R.7). 1988 enforcement order, as a consequence of which `the Borough filed a civil complaint dated February 28, 1989 seeking anjinjunction requiring them to discontinue use of the property at 219 Upper Mill Bay Road as a professional office building until such'time as the required parking facilities were constructed. (R.1-4). In the course of answering that complaint, the Ledouxs admitted that they had submitted the above-described parking plan in support of the October 1987 request for a variance authorizing a change in use of the property. (R. 8A, g4, admitting R. 2, 14). II. COURSE OF PROCEEDINGS. On November 10, 1989, almost two Years after the Ledouxs had actually converted the premises at 219 Upper Mill Bay Road to office use, they raised the possibility of complying with the off- street parking requirements Of the Borough Code by locating five of the required spaces on other premises. On"that date Kurt Ledoux submitted .a letter requesting that the Planning and Zoning Commission find it to be impractical to locate all of the required off-street parking at 219 Upper Mill Bay Roadland that it authorize seven) of the required spaces to be located off -premises on property owned by Dr. Bob Johnson. (R.50-51)' A handwritten post 1/ Later changed to five., 4 MELvtN LSTEPHENS.tt A arofUtwtitCC%POAATIOA ATTORNEY AT LAW 104 Cttrtt An.. aunt tot P. o.JOK 111t9 KODIAK. ALASKA 99919 (9071 48e-3143 { script to that letter reads: "Please also consider the same findings for the Community Baptist Church."' i The Planning and Zoning Commission held a hearing on Mr. Ledoux's request on December 20, 1989. It impractical to locate five of the seven required spaces on the lot at 219 Upper Mill Bay Road, found that it was off-street parking however, it denied permission to locate these' spaces on Dr.; Johnson's property, finding that the proposed parking was not within line of sight of the Ledouxs' office and that it would not; be viable even with adequate identification of the spaces involved. (R.69). The I ' Commission also relied upon Mr. Ledoux's admission that he was unable to obtain an easement guaranteeing ttie future availability of the parking spaces in question. (R.77): Indeed, Mr. Ledoux presented the Commission with no evidence whatsoever that he had any right to locate parking on Dr. Johnsoni's property, offering only a copy of an unsigned lease, terminable upon six -months notice, and his own assurances that Dr. Johnson was willing to sign such a document.' (R.54, 88). While Mr. Ledoux had assured the Planning and Zoning Commission that he would go ahead and build the parking lot if the Commission so decided (R.78), his response to the December 20, 1989 decision was otherwise. He filed an appeal to the Kodiak City Council and, after waiting almost a full month, requested that it be stayed so that the Commission enter additional findings as to why it had denied his request to use the Community Baptist Church I parking lot or a public City of Kodiak parking lot to meet his MELVIN M.STEPHENS.(1 A h0R[MIOMI CORPORRTIOR ATTORNEY AT LAW 104 ant AVE. gum Zoe P. O. '01 1122 KODIAK. ALASKA 99815 (9071 4664149 parking needs. (R.109). On February 22, 1990 the Commission patiently entered those additional findings, pointing out that the Ledouxs had presented the Commission with no documentation whatsoever showing that the Baptist Church was willing to allow its parking lot to be used as a permanent solution to their parking needs and that they had never formally requested that the city parking. lot be considered as an alternative solution- to these needs. (R.110). The Ledouxs' appeal to the Board of Adjustment was heard and denied on June 5, 1990, with the Council entering detailed findings of fact in which it upheld the Commission's judgment that neither a short-term lease nor an unwritten "gentlemen's agreement" would promote the goal of assuring adequate off-street parking for the Ledouxs' needs. The Council found the record to contain substantial evidence supporting all of the Commissions findings except the finding that it was impractical for the Ledouxs to build the parking lot they had originally proposed. With respect to that finding, the Council held that the difficulties cited in the record and the modest cost of overcoming them did not make construction of the parking lot impractical. (R.12, 17). The Council also found as a matter of fact that no substantial part of the downtown public parking lot was within 600 feet of the Ledouxs' property. It felt the most credible evidence on this issue was the map appearing at page 39 of the record. (R.12, q6). On July 5, 1990 the Ledouxs appealed the Council's decision to this court, erroneously listing the Kodiak Island Borough and the "Kodiak Planning and Zoning Commission° as the appellee. MELVIN M.STEPHEN5.11 A Paorta5I0n*L 0011P0ORIOn ATTORNEY AT LAW 100 Cnnn Ani., sum 200 60.00111x1 KODIAK. ALASKA 99615 (907)686.3143 MELVIN M.STEPHENS. 11 A !MD epf IDMAt CD$ORRtOR ATTORNEY AT LAW 104 CUM* AYt.. SUIT[ 291 P. O. 002 1121 KODIAK. ALASKA 99615 (907) 466.3143 As an borough code STANDARD OF REVIEW initial matter, the court should note that the provision here at issue, KIBC 17.57.030, is discretionary, not mandatory. It begins by establishing the standard that "[a]ll parking spaces required under (KIBC] 17.57.020 shall be on the same lot as, or a lot adjacent to, the principal building that they service . . .. It then provides for an exception: "If the planning commission finds that it is impractical to locate the spaces on such a lot, it may permit them to be located on any lot within six hundred feet) of the principal building." (Emphasis added). The factual findings related to this case must be upheld if the record contains substantial evidence to support them. In reviewing the Commission's exercise of its discretion to deny the i Ledouxs' off -premises parking "plan", however; a rational basis test is applied.) J See Galt v, Stanton, 591 P.2d 960,963 � (Alaska 1979) (where an administrative agency is exercising discretion which has been delegated to it, the appellate court's task is to determine whether there is a rational basis for thelexercise of- that discretion). The rational basis test may be applied in two circumstances, one of which is "when a case requires resolution of policy questions which lie within the agency's area of expertise and are inseparable from the facts underlying the agency's discretion." Earth Resources Co. v. State, Dept. of Revenue, 665 P.2d 960 (Alaska 1983). This describes exactly what a planning commission does in attempting to determine whether or not a proposal to locate off-street parking on al lot other than that which contains the building generating the need for it should be approved under K.I.B.C. 17.57.030. MELYIN M.SSEPNENS. It s P.C,L49otatt0¢PO*A21OX ATTORNEY At LAW 104 Cams Art.. SUM 204 P. O. SOX 1129 KOOIAK. ALASKA 99615 (907) 486.3143 ARGUMENT I. THE PLANNING AND ZONING COMMISSION'S DECISION WAS A PROPER EXERCISE OF DISCRETION. The Planning and Zoning Commission and the Board of Adjustment disagreed as to whether or not, the difficulties associated with building a parking lot in the backyard of 219 Upper Mill Bay Road rendered it impractical to do so. Even if we accept the Commission's view that it was, however, we advance no further than the question of whether there was a rational basis for the Commission's exercise of the discretion accorded it under KIBC 17.57.030 to determine whether an alternate location of the required parking spaces would be appropriate. The usual procedure, of course, is for a party seeking the benefit of the off -premises exception 0fiKIBC 17.57.030 to actually purchase other real property within 600 feet of the building for which parking is required. That party is thus in complete control of his or her parking needs and can assure the Borough that the off -premises parking will always be available. For all practical purposes, the Borough Code requires as much, stating explicitly that "[t]he off street parking required by [chapter 17.57] for a principal building shall be maintained in accordance with [chapter 17.57] continuously during the life of the building."J Similar assurances could, of course, 'be provided by the acquisition of a permanent easement permittinglthe parking to be K.I.B.C. 17.57.010. MELVIN M.STEPREMS.II A P10(93410 NAL CORPORATION ATTORNEY AT LAW 104 CUM MM.. 9011{ 20t P.O. BOI 1129 KODIAK. ALASKA 99615 (907) 466.3143 located on property owned by another. Such a condition was suggested by the.Community Development Department staff but Mr. Ledoux admitted that he was unable to secur1e such an easement."' Conceivably, a long-term lease guaranteeingiparking rights for a period roughly equal to the life of the building which they are intended to serve might offer another alternative. Here again., however, the Ledouxs came up short. They claimed that Dr. Johnson was willing to grant them a lease of certain parking spaces in a lot approximately a block away and out of ,the line of sight of w their building, but the lease in question would have been terminable upon six months' notice. The Commission found this arrangement, if in was ever any substance to it,J to be inadequate. nothing irrational, arbitrary or capriciousiabout It simply recognized the reality which to Il this day the Ledouxs refuse to acknowledge: they do not, and did not, in fact have 1 access to long-term off -premises parking. Indeed, the Commission's judgment on this issue was proven correct when, even before the June 6, 1990 Board of Adjustment hearing, Dr. Johnson sold the fact there There was that decision. 1 J At R. 77, for example, Mr. Ledoux admits, "I could not possibly get easements from these people,' and at R. 86, in response to the question, "What about the church. You said in one statement that they would provide you permanent use of that however they would not give you a permanent easement," Mr. Ledoux replies, "That's right. They do not want their land' tied up and I would have to agree with that . . .". It was never confirmed in writ ng. A copy of the lease which the Ledouxs claim Dr. Johnson was willing to sign is found at R. 54. 10 MELV(N M.SJ7EPHEN5.11 A PIG(TsSIORALCC*PO ATlWA ATTORNEY AT LAW 104 COMM Afl.. SORES 04 P. O. AOE 1129 KODIAK. ALASKA 99615 (901) 466.3143 property upon which the parking spaces in question were to be located.) The Community Baptist Church was not even willing to sign a short-term lease for the use of their parking lot, nor did anyone associated with the church ever testify ono much as submit a brief letter in support of the Ledouxs' position. As a result, the Commission was faced with "[t]he absence of any written document that would allow [the Ledouxs] to use parking space elsewhere."J Under the circumstances, one must either ignore or blatantly mischaracterize the record in order to suggest that the Commission was in any way unreasonable or capricious in rendering the decision that it did. The Ledouxs claim that "[i]t was the duty of the Planning and Zoning Commission to allow a reasonable lalternative to an unsafe condition" and that "[lit failed to 'do this."12i Not surprisingly, they fail to cite any legal authority for this proposition, which once again stands the factual record on its head. It was, of course, the Ledouxs, and not the Commission, who converted the building at 219 Upper Mill Bay Road from a single-family residence to an office building. 'It was this change in use that required the provision of additional off-street parking. It was the Ledouxs who proposed to meet these J R. 25. 21 R. 87, remarks of Commissioner Coleman! 10 Brief of Appellants at 10-11. 11 MELVIN M.STEPHENS.)( A VYof4SNCML4o"OOTIOA ATTORNEY AT LAW 104 COATI AV1.. !WTI 2011 A. 0.110X 1121 KODIAK. ALASKA 99615 (907) 455.3143 requirements by constructing a parking lot in the backyard.W When, after much foot -dragging, they were finally ordered to follow through with their plans, they conveniently decided that those plans were impractical. In the meantime theLedouxs have occupied the premises in question for well over thre years, blatantly flaunting the off-street parking requirements of the Borough Code all the while. Just how this scenario gives rise to a "duty" on the part of the Planning and Zoning Commission; to approve an off - premises parking "plan" which depends upon the day-to-day'desires of the partieswhose property the Ledouxs propose to use is a mystery upon which Appellants' Brief sheds no light.1z 3-I/In their Statement of Points on Appeal the Ledouxs raised the question of whether the Borough's alleged "misadvice" to the Appellants "on location of their parking lot'? constituted a waiver of "the variance requirements." This point has been waived because of the Ledouxs failure to argue it in their opening brief. Nordic Construction Co. v. Whitney Bros.. Plumbing& Heating. Inc., 441 P.2d 122, 123 (Alaska 1968); Veal v. Newlin:. Inc., 367 P.2d 155, 156 (Alaska 1961). Lest the court see the matter differently, however, it should be noted that this issue appears to center upon Mr. Ledoux's imperfect recollection that someone associated with the Borough looked at the rear yard of 219 Upper Mill Bay Road with him following his submission of the sketch: showing that he was going to build a parking lot there. Mr. Ledoux is never able to decide who this person was, however, identifying him differently each time the subject comes up (R. 78, "Bob Shuttlesworth"; R. 18, "Bob Scholze"; R. 21, "Bob Peterson") and, in any event, he claims no more than that this mystery man agreed with Mr. Ledoux's judgment that.a parking lot meeting zoning code requirements could be built in that location. Such facts are not the stuff of which governmental waivers of zoning laws are made. 1 The lack of substance- in the parking .plans which the Ledouxs presented to the Planning and Zoning Commission is highlighted by footnote 4 to their brief in which, after admitting that Dr.. Johnson no longer owns the property upon which the Ledouxs at one time proposed to locate their off street parking, they speculate that "there is nothing to prevent:the new owner of the property from leasing the spaces to the Ledouxs." One wonders 12 . MELVIN M.STEPHENS.11 A ll9InI OIU1. COA.9AAtlO{t ATTORNEY AT LAW 104 Turn AVE. SUITE 204 P.0.94K 1129 KODIAK. ALASKA 99615 (907) 466.3143 11. THE DOWNTOWN PARKING LOT IS IRRELEVANT TO THIS APPEAL. At the Planning and Zoning Commission hearing of December 20, 1989, Mr. Ledoux appears to have made two references to the downtown public parking lot as a source of "alternative" parking spat i] during the course of which he claimed that a small portion of that lot is within 600 feet of his property.. The vicinity map which was before the Commission suggests otherwise.W The Planning and Zoning Commission noted that the Ledouxs had not raised the downtown parking lot as an "alternative" parking site prior to the December 20 hearing and thus refused to consider this argument.i5 The Board of Adjustment upheld this decision but also found as a matter of fact that the parking lot in question was 1 more than 600 feet from the Ledouxs' office, relying upon a vicinity map found at page 39 of the record in doing so. This ends the argument concerning this parking lot. The Board of Adjustment made a factual finding that no substantial part 1 of the lot is within 600 feet of the Ledouxs' property and that finding is supported by substantial evidence lin the record. It is not the province of an appellate court to Ireweigh the evidence which was before an administrative agency or board or to choose i whether to laugh or cry at this ridiculously irrelevant statement, which in no way addresses the merits of the Planning and Zoning Commission decision from which the Ledouxs have appealed. 13 R. 77, 85. 1a R. 39, 82. The downtown parking lot ;is ,immediately across Center Street from the 600' circle shown on the map found at R. 39. 15 R. 110. 13 MELVIN M.STEPHENS.II AP O,US3C ULCOAIOMTtOR ATTORNEY AS LAW to' CnTl An.. sort 264 I.0. 003 1124 KOOIAK. ALASKA 99615 (901) 406.9143 between competing inferences which might be drawn from it. It only determines whether the record contains substantial evidence 1 supporting the decision appealed from.111 In,ithis case, the record contains perfectly credible evidence suggesting that the city parking lot is more than 600 feet from the Ledouxs' building. i Accordingly, the court should defer to this finding. The lack of logic in the Ledouxs' position concerning the downtown parking lot is nevertheless apparent. They do not argue that they are responsible for having provided any of the spaces in the downtown lot, nor do they suggest that they have any right to mark any of those spaces as "reserved" for their clients. Instead, they merely observe that, since the lot in question is open to the use of the public, their clients may use it.1 As a consequence of this thoroughly unremarkable fact, the Ledouxs then assert that the off-street parking requirements of the; Borough Code should somehow magically disappear, the space the Ledouxs otherwise would have been required to provide having been deemed "located" within This argument falls of its own weight and scarcely merits a serious reply. The Ledouxs created a need for additional off - the public parking lot. street parking when they converted the residence at 219 Upper Mill were free to seek a variance or. Bay Road to an office. They exception from these requirements. They elected not to do so, 1 however, and instead assured the Borough authorities that they is Storrs v. State Medical Board, 664 Pt2d cert. denied 464 U.S. 937 (1983). 14 547, 554 (Alaska), 11 MELvIN M.STE90E05.11 •?8 FU m6M. CORD' T[OR ATTORNEY AT LAW 104 C[R"6 6K.. 5001206 P. 0. a0K 1121 K00IAK. ALASKA 99615 (9071 486.3143 would provide the additional off-street parking on the same lot as the building they were converting. They then switched their tune and sought permission to provide these spaces by entering into an arrangement with a third party which supposedly would assure the reservation of other private property for the necessary spaces. Either way, the goals of the Borough Code would be met, for the increased need for off-street parking would be addressed either by the creation of new spaces or by the reservation of existing excess spaces on private property which otherwise could be withdrawn to other uses. Simply pointing to the existence of n already crowded public parking lotai in the general vicinity of a project which creates additional off-street parking needs -whether or not that lot is within 600 feet of the project —does not similarly address those needs, however. In essence, the Ledouxs' musings concerning the downtown parking lot boil down to the completely unsupported, and insupportable, assertion that they shouldn't have to comply with KIBC 17.57.020 at all, not to a legitimate argument that they have done so by providing parking at an off -premises location pursuant to KIBC 17.57.030. III. THE FINDINGS OF THE BOARD OF ADJUSTMENT ARE SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD. The Ledouxs claim,. once again without supporting authority, that the City of Kodiak must bear the burden of showing 17 At R. 85 Commissioner Barrett characterized the downtown parking lot as "quite crowded" and "congested" and noted that he had received a number of complaints about the lack of parking in the downtown area. 15 MELYIN M.STEPNENS.1) A PROMSIONAL CORPORATION ATTORNEY AT LAW 104 CUT06 AV'., Soni -308 A0.60% 11t9. KODIAK. ALASKA 99615 (907) 466.3 I43 that there is substantial evidence in the record to support the Planning and Zoning Commission's decision. This is not the law. A party contending that evidence is insufficient to support a finding of a trial judge must convince the court on appeal that the finding in question was clearly erroneous,18 and the burden of proof does not shift to the appellee simply because the appeal is being taken from an administrative decision and the court is focusing upon whether the record contains substantial evidence to support it. Thiscase is conceptually similar to those involving applications for variances or changes in use, and in such cases the burden of proof clearly rests upon the appellant. Not only does Appellants' Brief fail.to offer a reasoned and accurate analysis of the record, it fails even to mention the detailed findings entered by the Board of Adjustment. Since those findings, which are found at. pages 11-14 oft the record, have not been.attacked with specificity, a detailed citation of the record in their defense seems inappropriate. Suffice' it to say that the focus of this appeal should be upon whether or not.the Ledouxs demonstrated the intention and ability to tcomply with the off- street parking requirements of the Borough Code at the Planning and Zoning Commission hearing of December 20, 1989. Virtually every page of the record shows that they did not. 18 19 See Hamilton v. Lotto, 397 P.2d 980 (Alaska 1965). Kelly Supply Company. Inc, v. City of Anchorage, 516 P.2d 1206, 1211 at n. 5 (Alaska 1973). 16 MELVIN M.STEPNENS.II • P.OMMOIILLCORIOIA.TIOX ATTORNEY AT LAW :CA CUM P.O.AQx 112• KODIAK. ALASKA 99615 (907) 486-3143 Indeed, the entire record of their behavior for better than three years now indicates that their only intention was delay and obfuscation.29 They have refused to implement the parking plan they submitted in support of the variance which permitted them to convert 219 Upper Mill Bay Road to a professional office in the first instance and at the December 20, 1989 Planning and Zoning Commission meeting of they presented absolutely no evidence of a viable plan to locate that parking on any other property. The absence of such a plan more that supports the Commission's decision, it virtually mandates it. IV. THE LEDOUXS ARE NOT BEING REQUIRED TO BUILD AN UNSAFE PARKING LOT. The suggestion that the Ledouxs are, somehow being forced to build an unsafe parking lot is nothing short of ridiculous. The Planning and Zoning Commission denied their request to locate their off-street parking requirements on property owined by others because the Ledouxs were unable to demonstrate that they had an enforceable right to use anyone else's property. As they have been either unable or unwilling to purchase such a right they may either expend the funds necessary to construct a safe and well -engineered parking lot in accordance with their original plans or simply cease the illegal use to which they have been putting 219 Upper Mill Bay J The Ledouxs' lack of effort did not escape the Planning and Zoning Commission. At R. 106 Commissioner Coleman comments that "this whole situation . . . seems to be dragging out for an indefinite period of time." He then notes that in other situations property owners with parking problems had typically "strived very hard to accommodate the code" but contrasts the Ledouxs' foot - dragging, saying "here I do not see much of any trying except a lot of verbiage . . . I have not yet seen a viable plan." 17 1 MELVIN M.STEPHENS.0 A ROHIOIOM*LCO YTORATIOO ATTORNEY AT LAW iOJ COMM wt.. WATT Y• P. 0.101 11111 KOOIAK. ALASKA 99815 1907) 486-3143 Road for more than three years now. The only thing the municipal authorities in Kodiak are attempting to force them to do is to comply with the zoning laws they have been violating ever since they first occupied 218 Upper Mill Bay Road more than three years ago. CONCLUSION Appellate Rule 508(e) provides for; the award of actual attorneys fees against a party who has brought a frivolous appeal or who has appealed simply for purposes of delay. Such an award is merited in this case. From the very beginning of this matter, the Ledouxs have demonstrated repeatedly thatltheir sole objective was to delay compliance with the Kodiak Island Borough Code as long as possible. We are now at the end of this legal odyssey and the court should take steps to see that the administrative and judicial process is not similarly imposed upon in the future. It should affirm the carefully considered and documented decision of.the Board of Adjustment and award the City of Kodiak its full attorney's fees on appeal. In addition, it'may also wish to consider the propriety of imposing monetary Appellate Rule 510. `�_y�, DATED this t)OP% day of t`tC^ I ! , 19 sanctions under MELVIN M. STEPHENS, Attorney for Appellee 18. MATTHEW D. JAMIN C. WALTER EBELL JOEL H. BOLGER* DIANNA R. GENTRY ALAN L. SCHMITT WALTER W. MASON• DUNCAN 8. FIELDS MICHAEL ARAUJO •ADMITTED TO ALASKJ. Ano w48H W0TON SANS M iHERS ADMITTLD TO ALASKA OAR JAMIN, EBELL, BOLGER & GENTRY A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLVN STREET KODIAK, ALASKA 99615 FACSIMILE: (907) 486-6112 TELEPHONE: (907) 486.6024 REPLY TO KODIAK OFFICE February 27, 1991 Ms. Linda Freed, Director Community Development Department Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99615 Re: LeDoux v. Kodiak Island Borough Our File No. 4095-87 Dear Linda: SEATTLE OFFICE: 300 MUTUAL LIFE OUILDING 605 FIRST AVENUE SEATTLE, WASHINGTON 98104 FACSIMILE: (206) 623.7521 TELEPHONE: (206) 622-7634 Please find enclosed a copy of the appellants`, brief filed by Kurt and Gabrielle LeDoux in the above -referenced 'action. Please check the brief and prepare for me any disagreements you have with the factual matters they have cited. I would also appreciate any ideas you have for response to their legal arguments. Our brief will be due on March 26, 1991. Feel free to call ifiyou have any questions. Sincerely yours, JAMIN,-EBELL, BOLGER &GENTRY Joel H. Bo JHB:cat Enclosure cc: The Honorable Jerome Selby, Mayor Mr. Jack McFarland, Presiding Officer 87L.001 RECEIVE© ; MAR 1 1991 COMMUNITY DEVELOPMENT DEPT IN THE SUPREME COURT FOR THE STATE OF ALASKA KURT M. LeDOUX and GABRIELLE ) LeDOUX, ) ) Appellants, ) vs. )" ) KODIAK ISLAND BOROUGH, ) �,. Appellee. ) ) Case No. S=3997 JAMIN, EBLLL, ByLlich ; UMHY A Prolesslonol Corporation FEB 2 51991 KODIAK, ALASKA APPEAL FROM THE JUDGMENT ENTERED BY THE HONORABLE ROY H. MADSEN SUPERIOR COURT FOR;THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT KODIAK BRIEF OF APPELLANTS KURT M. LeDOUX LeDOUX & LeDOUX ATTORNEYS AT LAW 219 MILL BAY ROAD KODIAK, ALASKA 99615 ' (907) 486-4082' ATTORNEY FOR APPELLANTS itj Filed in the Supreme Court for the State of Alaska, this day of February, 1991. DAVID LAMPEN Clerk of the Appellate Courts Deputy Clerk TABLE OF CONTENTS TABLE OF CONTENTS., Page i ii iv 1 7 2 3 TABLE OF CASES AND AUTHORITIES STATUTES, RULES AND ORDINANCES RELIED UPON STATEMENT OF JURISDICTION PRODEDURAL HISTORY ISSUES PRESENTED FOR REVIEW STATEMENT OF THE CASE ARGUMENT i I. The Court should not have granted KIB's motion II. The Trial Court should have stayed matter 11 III. The award of attorneys fees and costs was not justified IV. The amount of attorney's fees avas excessive 9 13 • 15 CONCLUSION 16 th TABLE OF CASES AND AUTHORITY CASES Alaskan Airways vs. Wien, 8 Alaska 170 (D.Alaska 1930) City of Omaha vs. Cutchall,: 114 N.W.2d 6 (Neb. 1962) Gilpin vs. Jacob Ellis Realties;', PAGES 9 11 135 A.2d 204 (N.J.Sup. 1957) 10 Hobbs vs. Smith, 493 P.2d 1352 (Colo. 1972) 10 Hoyt vs. Geist, d` 364 S.W.2d 461 (Tex.Civ.App. 1963) 10 Ingraham vs. University of Maine, 441 A.2d 691 (Me. 1982) 11 Keiner vs. City of Anchorage, 378 P.2d 406 (Alaska 1963) 11, 12 Koehlke Components? Inc. vs. S.E. Connectors Inc., 456 So.2d 554 (Fla.App. 1984) LaSalle National Bank vs. City of Lake, 325 N.E.@d 105 (I11.App. 1975) 12 1 Lewis vs. S.S. Baune, 534 F.2d 1115, reh. den 545 F.2d 1299 (5th Cir. 1972) Leyna vs. Certified Grocers of California, 593 F.2d 857 (9th Cir. 1979) ii 12 9 9 12 Mitchell Irrigation District vs. Whiting, 136 P.2d 502 (Wyo. 1943) Nova Horizon vs. City Council of Reno, 769 P.,2d 721 (Nev. 1989) Palmer vs. Palmer, 409 A.2d 1050 (Del. 1979) Penelko, Inc. vs. John Price Associates, 642 P.2d 1229 (Utah 1982) Rosental vs. Shepard Broadcasting Services, I 12 N.E.2d 812 (Mass.Sup.Jud. 1938)1 Stepanov vs. Garvilovich, 10 13 12 10 10 594 P.2d 30 (Alaska 1979) 4 15 Varner vs. Aboussie, 397 P.2d'494 (Okl. 1964) 10 t, Wade Oilfield vs. Providence, Washington Insurance Co., ' 11 759 P.2d 1302 (Alaska 1988) ORDINANCES Kodiak Island Borough Code 17.57.030 MISCELLANEOUS AUTHORITIES { 42 Am.Jur.2d Injunctions, Section 56, 59 (19!.69 6 13 STATUTES AND ORDINANCES PRINCIPALLY RELIED UPON The Kodiak Island Borough Code 17.57.030 provides as 1 1 "All parking spaces required underj Section 17.57.020 shall be on the same lot as, or a lot adjacent to, the principal building that they service; provided, that if the planning commission finds that) ,it is impracticable to locate the spaces; on such a lot, it may permit them to be located on any lot within six hundred deet? of the principal building. All parking spaces required under Section 17.57.020 shall be located in a use district permitting the use which they serve." :. f ' 41 follows: i V STATEMENT OF JURISDICTION' This is an appeal by Kurt and Gabrielle LeDoux of the decision of the Kodiak Trial Court, granting Kodiak Island Borough's Motion for Summary Judgment, denying the LeDouxs' cross-motion for summary judgment and motion to stay action, dated January 12, 1990. This is also on appeal of the Court's order granting KIB attorneys fees/ dated March 22, 1990, and the Court's Judgment dated March 22, 1990. ThelSupreme Court has jurisdiction over Appellants appeal pursuant to AS 22.05.010. This appeal is being prosecuted in accordance with Appellate Rule 201, et. sea. 0 t. 1 ISSUES PRESENTED FOR REVIEW 1. Should summary judgment have been granted in KIB's favor? 2. Was it error to allow KIB to request alternative relief without notice to Appellants? 3. Should an injunction be granted while there are 11 legal remedies open to th&,,parties? 4. Were there issues of fact still iunresolved that would preclude the granting of Defendant's summary judgment motion? 5. Should have Appellants' cross-motion for summary have been granted. 6. Should KIB have been awarded attorney's fees? J`• t, 7. Were the attorney's fees awarded to KIB excessive? STATEMENT OF THE CASE Appellants, Kurt M. LeDoux and Gabriel le LeDoux, d/b/a LeDoux & LeDoux, hereinafter referred to as "the LeDouxs" in 1987 purchased the residence of Joel and Carolyn Davis located at 219 Mill Bay Road for use as a law office. The sale of the property was subject to the LeDouxs being able to obtain the approval of the Kodiak Island',,Borough Planning and Zoning a referred to as P&Z to use it as a Commission, hereinafter business. The property was zoned for uses such but a variance was required because the house as a law office, was toobig for the lot. The initial plans were to construct eight parking spaces in the back yard.1 The number of spaces was determined by the square footage of the building, utilizing the upstairs for an apartment.z The LeDouxs' main law practice consists of maritime personal injury cases, with two attorneys,'a full-time secretary, and a part-time file clerk. Bob Scholze of the Kodiak Island Borough, hereinafter referred to as KIB, inspected the property and reported back to tt`ie P&Z that it was practicable to build a parking lot on the subject•property. (R. —4 19).. P&Z then granted a variance on the property. The LeDouxs then completed the sale of the 1 It was later determined that only, seven space were required. 2 Utilizing the upstairsfor an apartment turned out to be impracticable. The upstairs is now used ,mainly for storage purposes and occasional non-profit community activities. property, and remodeled the 3 property into an office building. However, when the LeDouxs attempted to build the parking lot, it was found that the KID had erred in finding that it was practicable to build the parking lot.iThe LeDouxs hired Bernie Lindsey, an experienced contractor of Spruce Cape Excavating, to build the parking lot. As MrJ Lindsey set forth in an affidavit, for all practical purposes it' would be 1 impossible to construct an on -premises parking lot. (R. 40). There is too high of a slope in the ground where the planned drive -way was to be built between the law office building and the house next door to it. Building a drive -way would require cutting down the slope. However, this would cause drainage problems. Moreover, it would require the shoring up of the neighbor's fence, which would cause the driveway to be too narrow for practical use.3 The P&Z made the same conclusion in!its findings dated December 21, 1989 after the LeDouxs requested that they be able to use alternative parking satisfy their parking requirements, wherein stated: ?' "The Planning and Zoning Commission finds that it is impractical to locate five (5) of the seven (7) required off-street parking located on spaces for the office/apartment Lots 6A, 6B and 6C, Block 8; odiak 3 The opening now is only a little over nine feet. 4 Townsite, because parking developed on Lots 6A, 6B, and 6C would be unsafe: and of questionable benefit to the public ..." (R. 68) . Duane Dvorak, Associate Planner for KIB did a study on the proposed parking lot. Mr. Dvorak's findings are contained in his report dated December 7„1989. (R. 71-72). Highlights of the report are that the proposed use of the LeDouxs' back yard as a parking lot was not based on "sound engineering, construction or safety principles' because: 1. The sight line of drivers on;Mill Bay Road is blocked by a fence. d , tipfi 2. The opening to the back yard is too narrow. LTh 3. Mill Bay Road is downhill at the proposed driveway h r• entrance. 4. There is a buried fuel tank in !the badk yard. 5. There are drainage problems. 6. A retaining wall must be built., 7. Construction costs are not '�:ustified by the benefits. (R. 71). Mr. Dvorak concluded with some recommendations that can be helpful to this forum in deciding the issues before it: "If lack of parking space is a problem in the vicinity of the LeDouxs' office, it is not apparent to the casual observer. It is my suggestion that common sense be considered when seeking a solution Ito this dispute. It appears that applicant for variance agreed to construct parking spaces in an impractical and unsafe configuration. The grantor of the variance accepted this flawed proposal. Both parties erred Parking can not be a significant problem as a result of traffic;,%to this small law office. Call it a wash." (R. 472).! ,I The Kodiak Island Borough Code 17.57.030 provides relief when it is impracticable to build on: a particular lot wherein it states: 9 ? "All parking spaces required underlSection 17.57.020 shall be on the same lot as, or 1 t, a lot adjacent to,. the principal building G I , that they service; provided, that if tht i planning commission finds that; it is I.ZQ- C.C51-c#,...,4.9 .1 impracticable to locate the spaces1on such a"lot,'it may permit them to be located on I any lot within six hundred' feet) of the principal building. All parking spaces required under Section 17.57.020 shall be located in a use district permitting the use which they serve." 4The Ledouxs are attorneys not engineers. was committed by KIB. 6 The only error CA -4. -CA ar The LeDouxs have sought to obtain aariance from the odiak P&Z concerning the use of a church parking lot directly across from their business, and/or the use of the City of Kodiak downtown parking lot which is less than 600 feet from their office, and/or a private parking lot less than 200 feet form heir business. The P&Z has denied all requested relief, and such decision is on appeal to the Superior Court.5 PROCEDURAL` HISTORY � KIB filed an action against Plaintiffs on February 24, 1989. (R. 1). This gist of this action ;was to obtain an 1 induction requiring the LeDouxs to discontinue the use of their property unless they built eight on premises parking spaces. (R. 3) . The LeDouxs filed their answer on May) 31, 1989 raising i numerous equitable defenses to the grantingiofan injunction. e t' (R. 9). On July 21, 1989, KIB filed a motion for summary I . judgment seeking a court order to force the LeDouxsto construct off-street parking on their premises. (R. 13).' The LeDouxs in response filed an: Opposition to KIB's Motion for Summary Judgment and filed a Cross -Motion for SummaryiJudgment. (R. 34). In their motion the LeDouxs demonstrated that KIB'had erred in its position that it was practicable to build 8 parking spaces on LeDouxs' property. At this time the LeDouxJ pointed out to I the Court that they were in the process of obtaining approval from P&Z to use a parking lot less than 200 feet from their 1 I ' ciAA 5Case No. 3AN-90-5625 Civil. 1 office. (R. 37). The LeDouxs also set forth necessary citation to authority that KIB was not entitled to the relief that it sought. (R. 38). On December 29, 1989, the LeDouxs filed a combination reply to KIB's opposition to LeDouxs' cross-motion for summary judgment and a motion to stay proceedings. (R. 52). The LeDouxs' requested that the Superior Court proceeding be I stayed pending the final outcome of their request to the P&Z to use alternative parking proposals plus any necessary appeals. The Court held oral arguments on Appellee's motion on December 29, 1989. For the first time and,without notice to the LeDouxs or the Court KIB submitted a proposed order seeking different relief than that which was plteaded for in their complaint. Although KIB had been litigating solely on the basis that the LeDouxs had to build the parking lot without alternatives it now, in response to the LeDouxs arguments as to why they should not have to build an unsafe and needless parking lot, shifted gears to ask that an injunction against use of the property as an office building be granted only after a P&Z appeal was"denied. (T. 1). The Court granted KIB's motion for summary judgment on January 12, 1990, using the order KIB submitted to the Court at oral arguments on its motion for summary judgment. (R. 62). The granting of such motion in effect denied the LeDouxs' cross- motion for summary judgment and stay of proceedings. (R. 62). KIB on January 16, 1990 made a motion for attorneys fees in the sum of $4,547.50. (R. 65). The request was vigorously opposed 8 by the LeDouxs (R. 91) . KIB filed its reply; tc opposition on February 12, 1990. (R. 104). The i 22, 1990, awarded KIB attorneys fees in the sum ARGUMENT the LeDouxs' ourt on March of $3,350.00. I THE COURT SHOULD NOT HAVE GRANTEDIKIB'S MOTION The Supreme Court willonly interfere in the granting ere it has been shown '.hat there has been an of an injunction abuse of discretion by the trial court !in granting the injunction. See Channel Flying, Inc. vs. Bernhardt, 451 P.2d 570 (Alaska 1969). An injunction should only be granted adequate remedy at law and harm will result if e. is not granted. See Alaskan Airways vs. Wien if there is no the injunction 8 Alaska 170 (D.Alaska 1930). and Lewis vs. S.S. Baune, 534 F.2d '1115, reh. den. 545 F.2d 1299 (5th Cir. 1972). In this matter there was an adequate legal remedy, i.e., the administrative process whereby the LeDouxs-could seek alternatives to on -promises parking. Moreover, there was no evidence that there was .harm to the public. The LeDouxs park their cars at the church parking lot ,across the street from their law practice. They have been doing this for over three years.6 6They could also use the public downtown' parking lot. 1,•Cr1'2I1) J AM- T r • Any type of injunction, whether. conditional or immediately enforceable should not have been granted pending the outcome of the appeal process of the LeDouxs' !application to be allowed to use alternative parking. The ;issuance of the injunction was premature and without basis. Moreover, the Court should not have ordered the LeDouxs to vacate their premises unless they build a parking lot which all parties agree is useless and unsafe to the public.? An injunction should not be granted if it ;would provide no benefit to the party requesting it. See Penelko Inc. vs. John Price Associates, Inc., 642 P.2d 1229 (Utah 1982), Mitchell Irrigation District vs. Whiting, 136 P.2d 5p2, 508 (Wyo. 1943). and Rosental vs. Shepard Broadcasting Services, 12 N.E.2d 812, 819 (Mass.Sup.Jud. 1938). It is a legal truism that the law does not require a person to do a foolish thing. A foolish thing it what the Borough wants the LeDouxs to do. The Courts will not enforce i zoning regulations.which are needless or oppressive. See Hobbs vs. Smith, 493 P.2d 1352, 1355 (Colo. 1972),Iatiloin vs. Jacob • Ellis Realties, 135 A.2d 204 (N.J.Sup. 1957),• Varner vs. Aboussie, 397 P.2d 494 (Okl. 1964), Hoyt vs. 'Geist, 364 S.W.2d 461 (Tex.Civ.App. 1963). 7The Le because of t of the pr • Dau of course would never use the h •otential tort liability. However, rty may use it. 10 parking lot uture owners Considerations of public safety should be considered in whether to grant or deny a request for an injunction. An injunction should be denied where the enforcement of such injunction could potentially injure the public. See generally: 42 Am.Jur.2d §56, 59 (1969) and Ingraham vs. University of Maine, 441 A.2d 691 (Me. 1982). The LeDouxs have vested interests :in the subject property whereby they should be allowed to enjoy such property. r They would not have purchased it except for KIB's initial finding that it was practicable to build a parking lot on the property. The LeDouxs have made many property. They are currently providing the church parking lot located directly improvements to thejr rrr,E nec@ssary parking with across the street from their office. They are seeking through the judicial process the right to locate their parking on another lot. Zoning cannot be used to deprive an owner of the use of his property. See City of Omaha vs. Cutchall, 114 N.,W.2d 6, 12 (Neb.i1962). KIB causer? the problem and the LeDouxs should not have to be victims of its miser FCIB's motion form summary judgment should have denied and the LeDouxs' cross-motion for summary judgment should have been granted denying KIB the injunctive relief that it sought. been II. THE TRIAL COURT SHOULD HAVE STAYED THIS MATTER The granting of a motion to stay a matter is generally within the sound discretion of the court. 1 The standard of review is whether abuse of discretion has occurred. See 11 { t Koehlke-Components, Inc. vs. S.E. Connectors, Inc., 456 So.2d 554 (Fla.App. 1984). The LeDouxs requested the Court to stay the i proceedings pending the outcome of their application to P&Z (R. 52) to seek alternative parking. Stays are appropriate in cases involving circumstances whereby another related proceeding is pendinglwhnch can affect the outcome of the pending case. .'42‘ stay is called for when it will avoid, inter alia, possibly conflicting decisions and the waste of time, money and judicial resources.' See Palmer vs. Palmer, 409 A.2d 1050 (Del. 1979) and Leyna vs. Certified Grocers of California, 593 F.2d 857 (9th Ciri.1,1979). In this matter, the LeDouxs specifically sought the stay of the action pending the outcome of his application to to the, P&Z.8 The Kodiak trial court should have retained ,jurisdiction of any possible appeal of the PO decieion which would have limited the parties to a single appeal to this Honorable Court if necessary. As it stands now, this Honorable Court may end up hearing two separate appealst As discussed infra, injunctions are a remedy to be used as a last resort. As long as there was an alternative to • 8The denial of Plaintiff's P&Z request islon appeal to the Superior Court in the case entitled Kurt M. LeDoux and Gabrielle LeDoux vs. City of Kodiak, 3AN-90-5625 Civil.i 9The Court may want to stay this ..• of Appellants' appeal to the Sur-ri• appeal could be combined and only • - • this matter. eal pending Court at:Kodiak ecision I' 12 outcome Then any concerning 4 r", n 1 having an injunction issued, the Trial Court should have allowed the LeDouxs to seek a non -equitable solution' of the problem. There was a legal remedy that should have been allowed to have been attempted before any injunction was granted with resultant attorneys fee. III. THE AWARD OF ATTORNEY'S FEES AND'COST WAS NOT'JpSTIFIED The LeDouxs acknowledge that the standard of review concerning wheher a party is entitled to attorneys fee is an abuse of discretion is standard. See Atlantic Richfield Co vs. State, 723 P.2d 1249 (Alaska 1986). d 7 The awarding of $3,350.00 in attorniy's fees (R. 119) on a requested award of $4,547.50 (R. 65) was unjustified. There are various reasons why KIB should not have been awarded attorney's fees. In its complaint KIB sought to require construct "eight off-street parking spaces on pursuant to'the provisions of the Kodiak Island I'. KIB did not want to give the LeDouxs the alternative parking places. As discussed infra, initially both the LeDouxs and the A- Kodiak Island. Borough thought that it would be practicable to the LeDouxs to the property Borough code". right to use build the eight spaces behind Defendant's property on Mill Bay Road. However, as discussed infra, once a contractor was hired by the LeDouxs it was found that it was impracticable to build tt., 13 1'0 the eight spaces there. The Kodiak Island Borough acknowledged this impracticality after it filed'suit. As also discussed infra, in his Memorandum to the r---Kodiak Island Borough Duane Dvorak, Associate Planner, KIB Community Development Department, found that the Kodiak Island Borough had erred when it found that it was practicableto build 8 on -premises parking spots. Mr. Dvorak suggested that common sense be considered whenseeking a solution to the dispute. ' It was only when it was obvious that KIB made a ..i mistake as to the practicability of constructing such a parking lot behind the LeDouxs' place of business And it was pointed out to this Honorable Court by Defendants that:the law is clear ' that it willnot require a person to do an; impractical. and worthless act, that KIB shifted gears. The shifting of gears was to seek an alternate order that the LeDouxs must build the parking lot or find alternative parking. THE LEDOUXS DID NOT I CONTEND THAT THEY.SHOULD NOT PROVIDE SOME FORM OF PARKING. HOWEVER, IT -HAS 'BEEN KIB'S POSITION UNTIL PH'E DATE OF ORAL ARGUMENTS ON ITS. MOTION FOR SUMMARY JUDGMENT THA T THERE WERE NO ALTERNATIVES TO BUILDING A PARKING LOT BEHIND DEFENDANTS' OFFICE. Who is the winner and loser here? There is now an 4 s order from the Superior Court at least allowing the LeDouxs to seek alternative parking. In fact, at one point, the LeDouxs were willing to enter into a stipulation .to that effect if 14 attorney's fees were waived. From the very beginning the LeDouxs attempted to work out a- practical and common sense solution to the problem. (R. 103). The Borough's response, however, was a motion for summary judgment. A person who obtains affirmative; relief is not necessarily the prevailing party. See Haver vs. National Bank of Alaska, 619 F.2d 474 (Alaska 1980). In this. -matter KIB was denied an outright injunction, and the LeDouxs were at least allowed an opportunity to seek alternative parking. There really were no winners in this litigation and attorney's .fees should have been denied to all parties. See Tobeluk vs. Lind, 589 P.2d 873 (Alaska 1979). The LeDotts had to incur considerable attorney's fees themselves to defeat the primary purpose of KIB's action, i.e., forcing them to build a worthless N t. 1 parking lot without the possibility of reasonable alternative parking solutions. IV. THE AMOUNT OF ATTORNEY'S FEES WAS EXCESSIVE The amount,of attorneys fees awarded ;to the prevailing party is also subject to an abuse• of discrei:ion standard of review. Atlantic Richfield Co. vs. State, 723 P.2d 1249, 1252 (Alaska 1986). Even when attorney's fees are allowed, they should only be for a partial amount of the actual sum fees. See Stepanov vs. Garvilovich, 594 P.2d 30 This certainly.was not a complex case. KIB did and needless discovery of the LeDouxs. 15 of attorney's (Alaska 1979). not take long t As is stated in Atlantic Richfield Co. vs. State, 723 "The purpose of an award of attorney's fees is to provide partial compensation to a prevailing party. Absent bad faith or P.2d 1249, 1252 (Alaska 1986): vexatious conduct by the losing prty, an award of full attorney's fees is manifestly unreasonable and it cah constitutes an abuse of discretion. Complexity alone does not justify an award of full fees. An attorney's iA' I fees award should not be used to penalize a party." (citations omitted). d I The high award of attorney's fees: is substantially equivalent of awarding full attorney's fees. 1 CONCLUSION The LeDouxs request this Court to reverse the granting of KIB's motion for summary judgment, the awarding of attorneys 1 fees and the granting of judgment in KIB's favor. This Court should also, reverse the trial court's denial of the LeDouxs' cross-motion for summary judgment. In the alternative, this matter should be remanded to the trial court, with a stay order pending the outcome of the LeDouxs' appeal of the denial of their application to the P&Z. if their appeal is denied, the trial court should seek to find an equitable solution short of depriving the LeDouxs of the use of their property. 16 RESPECTFULLY SUBMITTED this 1991. ledoux.3\app 17 day of February, LeDOUX & LeDOUX ATTORNEYS AT LAW BY: Kurt M. LeDoux, Attorney for Appellants v MELVIN M.STEPHENS.0 A 94041SStONALCONPOnfTlOR ATTORNEY AT LAW 104 CUTER AVX.. SUNG 100 P. 0.00E 1110 KODIAK. ALASKA 99515 (907) 486.3148 IN THE SUPERIOR COURT FOR THE STATE THIRD JUDICIAL DISTRICT AT ANCHORAGE KURT M. LEDOUX and GABRIELLE LEDOUX Appellants ) ) )) ) vs. ) ) ) ) ) CITY OF KODIAK, Appellee Case No. 3AN-90-5625.CI OF ALASKA sKy1NCOTNICI •2ALS 0111169:491SGN 'CAL 1990 0.00tmeracoots MOTION FOR ACCEPTANCE OF LATE RECORD ON APPEAL Appellee, the City of Kodiak, hereby requests the acceptance of the accompanying record on appeal which', pursuant to the Stipulation Regarding Appeals Procedure dated November 6, 1990, should have been filed by November 21, 1990.1 The record on appeal is slightly late because the city clerk wasiill on Monday and Tuesday, November 19 and 20, and was unable to complete the record on Wednesday, November 21. November 22 was,Thlnksgiving. DATED this Fl10d in {no TOC rf STATE OFAALASKA. VIAS 1B.1 DEC 1 990 Cleat of the TAO Coutts RaM y day of November, 1990 IT IS SO ORDERED. DATED this RECFRIED DEC 2 01990 COMMUNITY DEVELOPMENT DEPT MELVIN M. STEPHEN-; II Attorney for Appellee ORDER day of SUP " TOR COURT JUDGE , 19 la CERTIFICATE OF SERVICE 1, MELVIN M. STEPHENS, 11 certify that f served the foregoing motion on KURT M. LEDOUX and GABRIELLE LEDOUX and upon Charles W. Coe by causing copies thereofln be mailed to them, postage prepaid and addreased, respectively, to the offices of Ledoux and Izdoux1 219�Upper Mill y Road, Kodiak, Alaska 99615, and Charles W. Coe, 805 W. 3rd Avenue, Suite 100, Anchorage, Alaska 99501 thia��'talay of, 1990. s. tint C I :ci.i:: _ ,k:3 w nob of the '�^ Chi„.J "`_ (SVT• l.�J.7”- ,, ` . MELVIN M.STEPHENS.11 A PBOrt$AtOPALCOarOBLt10a ATTORNEY AT LAW 104 Ceara. Ave., SOOZ 206 P.0. BOX 1t20 KODIAK, ALASKA 99615 (907) 486-8143 MELVIN M. STEPHENS, E O IN THE SUPERIOR COURT OF THE STATE OF THIRD JUDICIAL DISTRICT AT ANCHORAGE KURT M. LeDOUX and GABRIELLE, ) ) Appellants, ) KODIAK ISLAND BOROUGH, KODIAK ) PLANNING and ZONING COMMISSION, ) VS. Appellees. ) ) ) ) Case No. 3AN-90-5625 CI Kurt M. LeDoux and Gabrielle LeDoux, appellants; Kodiak sland Borough and Kodiak Planning and Zoning; Commission, by and through counsel,, Joel H. Bolger; and the City of Kodiak, by and through counsel, Melvin M. Stephens, II, enter into the following JAMI N. EBELL BOLGER & GENTRY 929 CAROLYN STRUT KODIAK, AK 99615 (907) 466.6024 ALASKA MAO M6Y TfW WS. STATE Of AP A9�BL IGrISION���ra '� NOV 0'7 1990 Garr rude con e K i net STIPULATION REGARDING APPEALS PROCEDURE stipulation for certain corrections in the appeals procedure in the present case: 1. The Kodiak Island Borough and the Kodiak Planning and Zoning Commission are dismissed from this proceeding as appellees and the Kodiak City Council, sitting as Board of Adjustment, is substituted as the appellee in. -this proceeding. 2. Melvin M. Stephens, II, will enter an appearance for he Kodiak City Council, and Joel H. Bolger is allowed to withdraw as counsel for the appellees in this proceeding. 3. The deadline for preparation of ,the record on appeal by the City of Kodiak is extended until Novemberll, 1990. Gy. 4. No party shall request dismissal or other sanctions based on the foregoing corrections to the appeals procedure in this • JAMIN. EBELL BOLGER & GENTRY 929 CAROLYN STREET KODIAK. AK 99815 (907) 486.6024 case. DATED this r eentlNnvettre, del et .=:--...,: serval a � a+n ce�tBaC + ' _>.: X 0'1 PPITS r es �BDr ,. atd r '�.,.✓ilar/ / /Lo„e„�4 74 b day of .Scgtember, 1990. LeDoux and LeDouxl Attorneys for Appellants By: d--474( Kurt M. LeDoux JAMIN, EBELL, BbLGER & GENTRY Attorneys for Kodiak Island Borough and Kodiak Planning and Zoning Commission By: J6e1 H. Bolger LAW OFFICE OF MELVIN M. STEPHENS, II Attorney for City of Kodiak By: )27,VjA Melvin M. Steph/ns, II ORDER The foregoing stipulation is approved and entered as an 1 order-in—this case. DONE this;:li " day of Se er, 1990. 4702\67P. 001 STIPULATION REGARDING APPEALS PROCEDURE Page 2 of 2 Ralph Stemp I Superior Court Judge Pro Tempore 1 '. tj tint en // a c.rTy cf the above want mailed to each of the folio g at ,eir addresses of records L7, Secrdtaryl G) v CO CO 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 24 2 26 27 28 LeDOUX & LeDOUX ATTORNEYS AT LAW 219 Mill Bay Road Kodiak, AK 99615 (907 486-4082 Attorneys for Appellants 1101110,10:0 OCT "! 91990 COMMUNITY DEVELOPMENT DEPT IN THE SUPERIOR COURT FOR THE STATE'OF KURT M. LeDOUX_;and GABRIELLE LeDOUX Appellants, vs. KODIAK KODIAK ZONING THIRD JUDICIAL DISTRICT ISLAND BOROUGH, PLANNING and COMMISSION Appellees. ) ) ) ) ) ) ) Upon a review of the applicable matter, IT IS HEREBY ORDERED that the November 7, 1990. DONE this _ (01 -Tay of October, 1990. ALASKA Case No. 3AN-90-5625 ORDER Civil law and facts in this record on appeal is due on ledoux.3\recond.ord tify that on 74 --,/q-920 ):r of the above was mailed to mob the folio ring at fr ad" r :s , of rd- -7 term t,et dor e(" 3(fv Pd 8 ii`ea ai Ci(i t ni tna sieve r fl�^b' f.6PY orp(d �P GllOfn°� '•{ (.. 1115 m39 ��t�/ r_ JAMIN, EBELL, BOLGER & MATTHEW D.JAMIN C. WALTER EBELL. JOEL H. BOLGER., DIANNA R, GENTRY ALAN L. SCHMITT WALTER W. MASON•• DUNCAN S. FIELDS MICHAEL ARAUJO •AomiT TEO TO ALASKA AND wASN NOTONN EARS TED TO WASHINGTON San ALL OTHERS AOHttTEO TO ALASKA SAP Melvin( 4. 104 Oen,er Kodiak, AK RE: Dear Mel: A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET KODIAK, ALASKA 99615 FACSIMILE: (907) 486-6112 TELEPHONE: (907) 486-6024 REPLY TO KOD1AK OFFICE G ENTRY September 28, 1990 tep'hb n s , "I I , Esq. venue, Suite 206 99615 LeDoux v. Kodiak Island Borough Our File No. 4702-67 SEATTLE OFFICE: 300 MUTUAL LIFE BUILDING 605 YIR$T AVENUE SEATTLE, WASHINGTON' 98104 FACDIMILE:(2081 623-7521 TELEPHONE: (208) 622.7634 Gabrielle LeDoux disagreed with certain provisions of the previous stipulation. I have enclosed a new stipulation for your review and signature. If you agree with it, please' forward it to Mrs. LeDoux for signature and filing. Sincerely yours, JAMIN, EBELL, BOLGER & GENTRY Joel_H.,_Bol,ge; JHB:dlm Enclosures cc: Kurt M. LeDoux, Esq., w/enc. Honorable Jerome Selby, Mayor, w/enc. Mr. Lorne_White,-_-w/enc. rLinda Freed,- v./enc. 4702\67C:006--- RECEIVED 702\67L 006" RECEIVED OCT i 1990 COMUUNITY DEVELOPMENS DEPT JAM, EBELL BOLGER & GENTRY 323 CAROLYN STREET KODIAK. AK 99615 (901) 486.6024 IN THE SUPERIOR COURT OF THE STATEIOF THIRD JUDICIAL DISTRICT AT ANCHORAGE KURT M. LeDOUX and GABRIELLE, ) ) Appellants, ) 1 vs. ) ) KODIAK ISLAND BOROUGH, KODIAK ) PLANNING and ZONING COMMISSION, ) ) Appellees. ) ), Case No. 3AN-90-5625 CI ALASKA STIPULATION REGARDING APPEALS PROCEDURE Kurt M. LeDoux and Gabrielle LeDOUX; appellants; Kodiak Island Borough and Kodiak Planning and Zoning Commission, by and through counsel, Joel H. Bolger; and the City of Kodiak, by and through counsel, Melvin M. Stephens, II, enter into the following stipulation for certain corrections in the appeals procedure in the present case: 1. The Kodiak Island Borough and:the Kodiak Planning and Zoning Commission are dismissed from this proceeding as appellees and the Kodiak City, Council, sitting as Board of I Adjustment, is substituted as the appellee inithis proceeding. 2. Melvin M. Stephens, II, will enter an appearance for I I the Kodiak City Council, and Joel H. Bolger is'al'lowed to withdraw as counsel for the appellees in this proceeding.' 3. The deadline for preparation ofithe record on appeal by the City of Kodiak is extended until November) 1, 1990. 4. No party shall request dismissal or other sanctions based on the foregoing corrections to the appeals procedure in this JAMIN. EBELL BOLGER & GENTRY 323 CAROLYN STREET KODIAK. AK 99815 (901) 486-6024 case. DATED this day of September, 090. LeDoux and LeDdux Attorneys for Appellants By: Kurt M. LeDotx JAMIN, EBELL, BOLGER & GENTRY Attorneys for Kodiak Island Borough and Kodiak Plarining and Zoning_ Commission By: Joel H. Bdlger LAW OFFICE OF MELVIN M. STEPHENS, II Attorney for City of Kodiak By: Melvin M.jStephens, II ORDER The foregoing_ stipulation is approved and entered as an order in this case. DONE this day of September, 1990. 002\67[3.001 11121111112LIMEDIALIELEAllifINEWLE Page 2 of 2 Ralph Stemp Superior Court iJudge Pro Tempore MATTHEW 0. JAMIN C. WALTER EBELL* JOEL H. 'BOLGER* DIANNA R. GENTRY ALAN L. SCHMITT WALTER W. MASON.' DUNCAN 5. FIELDS MICHAEL ARAUJO *ADMITTED TO ALA$MA ANO WASHINGTON GARS ASAOMITTEO TOWASNINOTON AAR ALL OTHERS AONITTt0 TO ALASKA SAG Melv Atto 104 Cha Kodiak, .JAMIN, EBELL, BOLGER & GENTRY A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 323 CAROLYN STREET KODIAK, ALASKA 99615 RE: at Avenue, Suite 206 AK 99615 FACSIMILE: (907) 486-6112 TELEPHONE: (907) 486.6024 REPLY TO KODIAK OFFICE September 19, 1990 Dear Mel: LeDoux v. Kodiak Island Borough Case No. AN -90-5625 CIV Our File No. 4702-67 SEATTLE OFFICE: 300 MUTUAL LIFE BUILDING B05 FIRST AVENUE SEATTLE, WASHINGTON 95104 FACslMILE:(2081523-7521 TELEPHONE: (206) 622.7634 I discussed the enclosed stipulation with Gabrielle LeDoux. I believe it conforms with our earlier discussions. If you agree, please sign and forward it Mr. and Mrs. LeDoux for their signature and filing with the court before September 28, 1990. If you have any suggestions, please give me a call. Sincerely yours, JAMIN, EBELL, BOLGER & GENTRY Joel H. Bolger JHB:dlm Enclosures ec: Kurt_M.__LeDoux,_ Esq., w/enc. Linda.Freed, w/enc. Honorable Jerome Selby, Mayor, w/enc. Lorne White, w/enc. 4702\671. 005 RECFWED I SEP 199U COMMUNITY DEVELOPMEN. . REPT IN THE SUPERIOR COURT OF THE STATE; 0 THIRD JUDICIAL DISTRICT! AT ANCHORAGE KURT M. LeDOUX and GABRIELLE, ) Appellants, ) vs. ) KODIAK ISLAND BOROUGH, KODIAK ) PLANNING and ZONING COMMISSION, ) Appellees. ) Case No. 3AN-90-5625 CI ALASKA STIPULATION REGARDING. APPEALS PROCEDURE Kurt M. LeDoux and Gabrielle LeDouj, appellants; Kodiak Island Borough and Kodiak Planning and Zoning Commission, by and through counsel, Joel H. Bolger; and the City of Kodiak, by and through counsel, Melvin M. Stephens, II, enter into the following stipulation for certain corrections in the appeals procedure in the present case: I 1. The Kodiak Island Borough and'tle Kodiak Planning and Zoning Commission are dismissed from !thlis proceeding as appellees and the City of Kodiak is substituted Is the appellee in i • this proceeding. 1 2. Melvin M. Stephens, II, will enter an appearance for the City of Kodiak, and Joel H. Bolger is allowed to withdraw as counsel for the appellees in this proceeding. 3. The deadline for preparation of the record on appeal by the City of Kodiak is extended until November 1, 1990 JAMIN. EBELL BOLGER & GENTRY 323 OAROLYN STREET KODIAK, AK 99615 (907) 486-6024 JAMIN, EBELL BOLGER & GENTRY 323 CAROLYN STREET KODIAK. AK 99615 (907) 486-6024 DATED this day of September, 1990. LeDoux and LeDciux Attorneys for Appellants By: Kurt M. LeDoux JAMIN, EBELL, BOLGER & GENTRY Attorneys for Kodiak Island Borough and Kodiak Planning and Zoning Commission By: Joel H. Bolger I LAW OFFICE OF MELVIN M. STEPHENS, II Attorney for City'of Kodiak By: Melvin M. 'Stephens, II * ORDER The foregoing stipulation is approved and entered as an order in this case, DONE this day of September, 1990. 4702\67P. 001 STIPLLATIDY REGARDING APPEALS PROCEDURE Page 2 al 2 Ralph Stemp Superior CourtlJudge Pro Tempore W o p wo �a) U s� !tn. n. c Z J Lti < CC < m o _ 3 z J oa (907) 276-6173 IN THE SUPERIOR COURT FOR THE STATE,OF THIRD JUDICIAL DISTRICT KURT M.' LeDOUX and ) GABRIELLE LeDOUX, ) ) Appellant, ) ) .,VS. - �. ) ) KODIAK ISLAND BOROUGH. ) KODIAK PLANNING and ZONING ) COMMISSION, ) Appellee. ) ALASKA 67897 ," 4 M JU11990 at cn 12 C� RECEIVED 4v 4 .; OF ((00 .4#2 V -ea-tZczz Case No. 87-058 NOTICE OF APPEAL COMES NOW, the Appellants, Kurt M. LeDoux, of 219 Mill Bay Road, LeDcux and Gabrielle Kodiak, Alaska, who hereby give notice of their appeal of a decision sitting as the Board of -Adjustment of the Kodiak City Council dated June 6, 1990 which affirmed a decision of the Planning and Zoning Commission. This appeal is permitted pursuant to Kodiak Municipal Code 17.10.100 and Appellate Rule 204(b). This appeal is from the Kodiak City Council sitting as the Board of Adjustment to the The Appellants are as follows: Address: Alaska Kurt M. LeDoux and Gabrielle LeDoux 219 Mill Bay Road Kodiak, Alaska 99615 Phone No: (907) 486-4082 Superior Court. (907) 276-6173 DATED this day of LeDoux & L 'oux - Attorneys at 1,f ------LLJ^J GLu. u... vs; 0. • •i (907)276-6173 IN THE SUPERIOR COURT FOR THE STATE OF ALASKA • KURT M. LeDOUX and GABRIELLE LeDOUX; Appellant, THIRD JUDICIAL DISTRICT .) ) VS. Ktir-t }L LeDcu:: ) ) Case ) KODIAK ISLAND.BOROUGH. KODIAK PLANNING and ZONING COMMISSION, Appellee. Aepellart `I No. 87-058 STATEMENT OF POINTS ON APPEAL COMES NOW, the Appellants, Kurt M. LeDoux and Gabrielle LeDoux, who.hereby designate the following issues as their points on appeal pursuant to Appellant Rule 206(i): 1. Did the Board of Adjustment err in approving the Plat and Zoning Commission's denial of a variance request on the Appellants parking lot? 2. Was the Board of Adjustment's decision of July 6, 1990 arbitrary & caprious? 3. Did the members of the Board of Adjustment err in failing to recusling themselves due to being involved in other litigation with the Appellant's? 4. Did the Borough's misadvise to the' Appellant's on location of their parking lot constitute a waiver of the variance requirements? DATED this 5 day of 1/ 1990. -GABRIELLE LEDC-0.. w 0 Ut °as •a Ira a JW N c 2 Z U Q L1J g d W cc c d [K M in Z U o¢ (907) 276-6173 LeDOuX & LeDour ATTORNEYS AT LAW BY: Kurt K. LeDOUX, Appe4{lant s- W o Q - w 5 a) w •a W Z N Z /-i W a z > t1Jo 6 W O:` x O m = 3 z U o¢ (9071 276-6173 INV* UPERIOR COURT FOR.THESTATE,OF THIRD JUDICIAL DISTRICT KURT M. LeDOUX and' GABRIELLE LeDOUX, Appellant, ) VS.. ) KODIAK ISLAND BOROUGH. ) KODIAK PLANNING and ZONING ) COMMISSION, ) ) Appellee. ) ) ALASKA Case No. 87-058 DESIGNATION OF RECORD ON APPEAL Appellants, Kurt M. LeDoux and Gabrielle LeDoux, hereby designates as contents of record on appeal the documents pursuant to Appellate Rule 210: 1. Complaint, dated February 29, 1989. 2. Defendants' Answer to Complaint, dated may 31, 1989. 3. Decision of the Board of Adjustment dated, June 6, 1990. 4. Hearing transcript before Board of Adjustment on June 5, 1990. 5. All exhibits submitted to the Planning Zoning Commission on December 20, 1989. 6. Appellants hearing Brief submitted, to the Board of Adjustment on June 5, 1990. 7. Transcript on the Hearing before the :Planning Zoning Commission on December 20, 1989. 8. Planning and Zoning Commission decision'on December 20, 1989. 9. Appellants Request for findings dated, February 21, 1990. DATED this' 'tray of July; 190. V.S . W o p til U tm Ch m • 3Nd r J {11 N nZ < (0 (f) t• W ¢ N• L((O < W ._J -0 G h � o m o Q 2 $ z U LeDoti x & LeDo ATTORNEYS AT BY: Kurt M. LeDo Appeli;ant W O• o 5 rn 3 N a iW N 4 Z J } 4 140 N Ll a _ z U o< (907) 276-6173 N .THE .S KURT M. LeDOUX and GABRIELLE LeDOUX, IOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT Appellant, ) "L'1.: )- VS. I uJ_ L rrtax I Appellant ) KODIAK ISLAND BOROUGH. ) KODIAK PLANNING and ZONING ) Case No. 87-058 COMMISSION, ) ) Appellee. ) SUBMISSION OF ALTERNATE SURETY BONDS COMES NOW, Kurt M. LeDoux and Gabrielle Ledoux, pursuant to Alaska civil Rule 80 and Alaska Appellate ,Rule 204(c), who hereby submit the attached surety bonds in the form prescribed by Alaska Civil Rule 80 in the amount of $750.00.as'security for the payment of costs on appeal. DATED this ✓ day of July, 1990. LeDoux & LeDoux ATTORNEYS AT LAW BY: Kurt M. LeDoux, Appeullant (9071 276-6173 THE SUPERIOR COURT FOR THE STATE. OF TRI .• THIRD JUDICIAL DISTRICT 1CURtl"I1W4L S;etOUXJend ) GABRIELLE LeDOUX, ) Appellant, :'.) VS. vs. ) KODIAK ISLAND BOROUGH. ) KODIAK PLANNING and ZONING ) COMMISSION, ) ) Appellee. ) SURETY BOND S Case No. 87-058 Karen Olsen, as surety, undertake in the amount of $750.00 to pay as costs if Appellant's appealis dismissed or the judgment and agrees to the provision of Alaska' Civil Rule 80(f) and Alaska Appellate rule 204(f). ✓ IN WITNESS WHEREFORE we have set our hands hereto this J day of July, 1990. eimiz Karen Olsen, 'as surety for Kurt M. LeDoux and Gabrielle LeDoux AFFIDAVIT OF INDIVIDUAL SURETY STATE OF ALASKA ss. THIRD JUDICIAL DISTRICT ) I, Karen Olsen, being duly sworn, swear that I am a surety on the foregoing Bonds; that I am a resident of the state of Alaska; that I am not an attorney, peace officer, clerk or other office of any court, and that I am .worth more than $750.00 over and above all w 0 wn mu) 3 N 6 2J ul a Z a Q tilt, Q w 0 CC < K Q m ix= 3 z Inc (9071 276-6173 debts, liabilities and properties exempt from/execution. KURT M.. LaDO az::. SUBSCRIBED 1990. Aope_iant, eitet ; 47) 2,U--2 Karen Olsen and SWORN to before me this 4 --day of July, Notary Public My Commission in and For las a Expires: w $ w zW 0 cc m Q '} U 0 o N r N N rn IN THE SUPERIOR COURT FOR THE STATEfOF KURT M. LeDOUX and GA$RIELLE LeDOUX, Appellant, THIRD JUDICIAL DISTRICT I. ALASKA T 1 ttO.VS ) KODIAK ISLAND BOROUGH. ) ,' j KODIAK PLANNING and ZONING ) , Case, No.j 87-058.r _,__._ _._.__ COMMISSION, ) ) Appellee. ) ) 80. CERTIFICATE OF ATTORNEY Examined and recommended for approval a provided in Rule Charles W. Coe APPROVAL BY JUDGE I hereby approve the foregoing. DATED this day of July, 1990. , Attorney at Law Superior 'Court Judge W 0 Q w o •in U s0) >'N Z!'3 w N z a Z Uiw wa Luo ¢ w C_ 4 ft m 0 = 3 z U o = CO (907) 276-6173 IN THE I ' KURT M. LeDOUX and GAHRLELLE `LeDOUX; ° I Appellant, t RIOR COURT FOR THE STATE of THIRD JUDICIAL DISTRICT 1 VS,. KODIAR"BLANNtNG ana.`zONING ) COMMISSION, ) ) Appellee. t Case No. ; 87 AFFIDAVIT OF SERVICE ALASKA -058 STATE OF ALASKA ) ss. THIRD JUDICIAL DISTRICT ) I, ALEEA K SCHURMAN, upon oath deposes and states: That I am a citizen of the United States of America,i over the age of 19 years,and employed as a legal secretary for the firm of CHARLES W. COE that on the 3 day of ot, 1990, I served a copy of STATEMENT OF POINTS ON APPEAL, DESIGNATION OF, RECORD ON APPEAL, NOTICE OF APPEAL, SUBMISSION OF ALTERNATE SURETY AFFIDAVIT OF SERVICE to: BONDS, and THIS CITY CLERK CITY OF KODIAK JOEL BOLGER' P.O. Box 1397 Attorney for City of Kodiak Kodiak, Alaska 99615 323 Carolyn Street Kodiak, Alaska 99615 by placing true copies thereof in the U.S. Post Office, at Anchorage, Alaska, in a properly addressed', postage prepaid envelope. C. C7.) O _ Q w O U I a) M r Cr}• G >iuiN w 4 Z -I CO r > Q rN Ili o ¢ w J t o a r iX a m A cc 0 Q o — S 3 i U ma Aleea K Schurman :SS -SCRIBED AND SWORN to before me this day 1990. KODIAK.ISLAND BOROUGH Notary Public in and for1as�k�a My Cpmmission Expires: T/ 7! - 44UN:K'1716!iEb June'6, 1990 Mr. -and Mrs. Kurt LeDoux 219 Mill Bay Road Kodiak, Alaska 99615 OT_Y_ CLERK POST OFFICE BOX 1397, KODIAK.11.1150/,99615 TELEPHONE (907)_48678636 , FA}( (907) 486-8600 • My Commission RE: Appeal of the Planning and Zoning Commission December 20, 1989, Decision Denying a Request to permit Five or the Seven Required Off -Street Parking; Spades To Be Located on Another Lot (Case 87-058) Dear Mr. and Mrs. LeDoux: The Kodiak City Council sitting as the Board of Adjustment heard the above case on June 5, 1990, and denied your appeal. The Board of Adjustment made the following Findings of Fact and Conclusions of Law supporting that decision. Findings of Fact 1. In 1987, appellants purchased Lots 6A, 6B, and 6C of Block 8, Kodiak Townsite (219 Mill Bay Road), withl the intention of converting the house which is on that property into a law office and an upstairs apartment. A variance permitting this change of use despite the fact that the house was too big for the lot(s) was sought and obtained by the appellants based in part upon their submission of a diagram showing that they intended to comply with the off-street parking requirements of Chapter 17.57 of the Borough Code by constructing:a parking lot with space for up to eight vehicles in the back yard. 2. Appellants have converted the house to office use but have neither constructed the parking lot nor 'applied for a variance from the off-street parking requirements of the Borough Code. Those requirements mandate that appellants provide at least seven off-street parking spaces in order to use their property as an office. 3. On November 10, 1989, appellants requested that they be permitted to locate seven of the required parking spaces on property owned by Dr. Bob Johnson. The lots in question (Lots 6 and 10, Block 14, New Kodiak Subdivision) are within 600 feet of appellants' property but not within line of sight]of it. This request was later modified so as to apply to only five of the required seven off-street parking spaces. • nd`Mrs`, Kur eDoux Jtine: 6-,'- 1990 Page 2 of 4 4. An unexecuted copy of 'a proposed lease between-appel lents and Dr. Johnson accompanied their November 10, '1989",_ request. The term of -that proposed lease was "year t� year with• the' r±ght=:.of either party to terminate [it] upon six months notice to the other party." The Community Baptist Church maintains a parking lot- adross^Mil Bay::Road-from appellants' property. A post script t� appellants' November 10, 1989 request concerning the reloca- tion.of their.off=street parking spaces suggests that they were considering the possibility of utilizing the church parking lot for these spaces but appellants have never produced any evidence demonstrating that the church was willing to enter into a binding agreement to permit its property to be used for this purpose. 6. Appellants' request was considered at the December 20, 1989 meeting of the Borough Planning and Zoning Commission. At that time appellant Kurt LeDoux stated his property was within 600 feet of the public parking lot adjacent to the intersection of Upper Mill Bay Road and Center Avenue and he requested that the Commission consider whether appellants could "use the down- town parking lot." This testimony is in conflict with a diagram submitted by the Borough staff, which shows no part of that parking lot to be within 600 feet of appellants' property. 7. On December 20, 1989 the Planning and Zoning Commission found that it was impractical for appellants to construct a park- ing lot in the back yard of their property. This finding, which is a prerequisite to consideration of appellants' request that they be permitted to located some of their required off-street parking spaces on property other than Lots 6A through 6C, Block 8, Kodiak Townsite, is not supported by substantial evidence in the record. The record reflects that appellants may encoun- ter certain difficulties in constructing such a parking lot but none of them are insurmountable. In particular,, it is to be noted the appellants themselves proposed the construction of such a parking lot as a condition to their obtaining the vari- ance permitting them to convert their property to office use. Furthermore, at the December 20, 1989 Planning and Zoning Commission meeting appellant Kurt LeDoux stated that, if required to do so, appellants could build the parking lot in question for between $3,000 and $4,000. 8. Before voting on whether or not to permit appellants to utilize Dr. Johnson's property for some of their off-street parking requirements, the Planning and Zoning Commission first discussed and imposed several conditions to any such arrange- ment, one of which was that appellants procure from Dr. Johnson Mr, std Mrs, .$ur .eDoux dune 6, 1.990 Page 3 of 4 an easement _establishing appellants_' --permanent right to utilize this property,fohe__required.:parking._::Appellant Kurt LeDoux sated_ that_,eagQeilants;; gcould._ no_t possibly__get- easements: from'.' Dr. Johnson -pr, -.impliedly; the Community Baptist Church for: such a, -purpose.-- a- - ' I 9, The ekannilingcyar ngC:CommissiOntactedareznsdnabclyldn imposing -,the --condition--that -appellants-obtained a YTermanen-t easement. encumbering Dr. Johnson's property or -any other prop- erty they sought to use to meet their off-street parking obliga- tions. Neither, a lease revocable upon six months; notice, such as appellants proposed to obtain from Dr. Johnson, nor an unenforceable "gentlemen's agreement" such as-theyifelt they.had or could obtain from the Baptist Church, would promote the goal of assuring adequate off-street parking to support appellants' conversion of their property from residential to office use. 10. Likewise, permitting appellants to "use" the public parking lot at Center Street and Mill Bay Road to meet their off-street parking requirements would be illogical and anoma- lous. By proposing that they be relieved from their obligation to construct off-street parking on their own property because part of a public parking lot may lie within 600 feet of it, appellants are essentially suggesting they be given a variance from the Borough's off-street parking ordinances. They have not applied for a variance, however; they have merely requested the right to locate the required parking spaces on a lot other than that upon which their office sits. "Using" parking available in a public parking lot no more meets appellants' off-street parking obligations than would a proposal to "use" on -street parking to meet those obligations. 11. Even after imposing a requirement thal!t appellants secure a permanent easement establishing their parking rights on Dr. Johnson's property, the Planning and Zoning Commission voted to deny appellants' request to relocate five of the required off-street parking spaces to Dr. Johnson's property. The Com- mission found the property was not within the line of sight of appellants' offices, that the proposed parking would not viable event with adequate identification of the individual spaces, and that Mr. LeDoux indicated the proposed conditions of approval could not be met. There is substantial evidence in the record to support these findings and these finding adequately support the Commission's decision. 12. On February 21, 1990 at appellants' request the Commis- sion adopted further findings regarding appellants' use of the Baptist Church property and the downtown public parking lot. It found that appellants had not obtained permission of the Commun- ity Baptist Church to submit its property as a viable parking alternative for Commission review. That finding is supported by substantial evidence in the record. Mr hand:-Mrs:r curt: _: Jugen6, 5199@90 . Page;:4 ofr4 1 Enla. s:JITe'. Commiss onalso:=-found that appellants Thad not £or- malty_- requested the dq ntgwn parking., -lob be investigated as an,.: alternativelegarki n- alternative;egarka sitg ani ,:thatlrappellants'. _grope.tty._was - not withi.nrtha:area encompassed by: the UR -19 Urban Renewal Plan. These_: -findings are also supported by substantialievidence in the record. They need not be relied upon, however, as permitting 'appellacts pxe the4Nn cagPr-ten_ C li' gwn cttlatpub}&Gs8 j3hgin lotmwokad,cdotriethj.rig.fto=;sreateathe>-additional.off- rsteet parlc4.ngr;. contemplated -by chapter. -17.57 of the Borough_Code.l-' We further, find that_ no_ substantial portion of the downtown public parking_, lot is within 600 feet of appellants' prope=t. The most . credible evidence on this issue appears -to be the drawing found at page 36 of the record. Conclusions of Law 1. There is substantial evidence in the retco Id supporting the Planning and Zoning Commission's decision itoldeny appel- lants' request to relocate onto another lot five 'of the off- street parking spaces required in connection with appellants' use of the building at 219 Mill Bay Road as an office and that decision should, therefore, be affirmed. 2. Appellants' appeal is denied. Sincerely, CITY OF KODIAK MARCELLA H. DALKE, CMC/AAE City Clerk MHD/ms cc: KIB Community Development Department Joel H. Bolger