Board of Adjustment Meeting - April 28, 2025

So, yeah. All right, it's 11. Let's go ahead and get started. I'll call a meeting to order, and we will start with a roll call. Chair Rose?

Present. Member Mueller? Present. Member Probst? Here.

Chair Yarbrough? Excellent. I will entertain a motion to approve the agenda for this meeting. So moved. Chair, we need to amend the agenda to add 5E to the agenda.

Oh, that's right. Thank you. I told you it— Remind me about that. So that would be 5E. B.

5B. 5B.

To schedule a next hearing date. We'll make that adjustment. So as amended, I'll entertain a motion to approve the agenda. So moved. Second.

All right, that's passed. And then I'll entertain a motion to approve the minutes from the previous meeting. So moved. Second. And that's passed.

So we turn to our only business for today, which is discussing the appeal number 2024-02.

And this is the second time this case has come to us on appeal. This time we're focused on, I think, quite limited issues. Given the limited issues, I actually think I want to break the normal course of how we do it. I'm going to entertain a motion to kind of suspend the normal motion second, uh, Robert's Rules process and just free flow discuss this for about half an hour. Yeah, salute.

Okay, wonderful. Awesome. Do that. So, um, I have my thoughts about this case and how I think I analyze it, but I don't want to kind of poison the well, so to speak. I'd love to have to hear what you guys have to say about it.

Carl, do you have any initial kind of impression about the case, the issues that are before us in this one? Well, I mean, some frustration that on this, you know, minute issue keeps coming back to us, and I'm not sure that, you know, we're the best place for it to be decided. We're probably not. And regret that it's taken so long to get to where it is. And over, you know, I thought the write-up that Courtney did was very good.

So is it a factual issue? Is it a legal issue, the section line easement? And I guess, you know, My thoughts are that, and I just reread the memo last night, that, you know, we can't make the determination as to the legality of it. It seems pretty clear on that.

That's usually for a court to decide. And it seems like You know, were we sitting as the planning board, they didn't necessarily do anything wrong. That they thought it was reasonable to assume that there was a section line easement that could be added to the width of the roadway, so it would qualify. That doesn't seem wrong to me, but since we can't determine whether there is or is not a section line, easement, you know, it seems like it just needs to go back to the planning board for a final decision. And legally, I don't know if this can be done, but that the, uh, appellants or, or somebody can ask the court to get involved and decide the issue of a section line easement.

But that's not really our role to decide. So those are just some of my thoughts as I reread the—. Ms. Mueller, what do you think? So I'm not a lawyer. Yeah.

And the legality question was a big red flag for me, not being a lawyer. I did try to dig around and deep dive, because I'm new to this altogether, as much as I could to get a good grasp for the situation. And with all that there is to unpack, I agree with you that it's not exactly something that we have the power to determine, and that it's something that really does need to go back, in my opinion, more to the judicial determination.

I can see where everybody sort of got to where they are, but I don't feel that it's something that is really up to us. It really needs to be reviewed by people with a good legal background. Yeah, that's— I'm sorry, go ahead. I'm sorry, that's just my interpretation of everything that I was able to read. If there's something that I was missing or a process that I'm— because I'm new to this, I just want to clarify that.

So, Yeah, no, that's, that's, that's good. And that's exactly, um, I mean, deep dive all you want. Um, we, we were limited to the record, um, in terms of factual issues, but one of the things that we can't consider is the law. That's why we have counsel to kind of advise us on the law. Exactly.

So we can deep dive and do research on it. Um, I think this question of the validity of the section line easement is an interesting one because both parties seem to agree that neither the Planning Board nor us have the authority to make a determination that says this section line easement is legally valid. Right. Um, the problem with an administrative body making a rule like that is, is it's outside the jurisdiction. It really is a court and be a quiet title action, which I think even we referenced in the last order that we, that we sent out, that we were not making a determination on the section line easement validity.

But no, see the statute that says it's a quiet title action. You should send it to the court to figure that out. Sure. The problem that I think exists is we have this decision by the Planning Board that— and a question of, does the language the Planning Board used in its order or in its findings, does that seem to establish the validity of the of the section line easement. And I think that's the issue that appellants are taking with it, is they're saying, look, they're saying they determined there is a section line easement.

And that kind of is saying there is a section line easement. And to me, that's the problem with the Planning Board's writings and how they spelled out. I'm interested in the argument from the appellants that says, well, look, that all that's really needed to approve the plat is that if there's a reasonable belief that the other— that the circulation easement would be dedicated, right? There's that language in there and have the code reference. Where is it?

Anchorage Municipal Code 21-08040.

It's A-3.

Um, planning authority may approve the dedication of half street only when the other half of the street has been dedicated, which we know hasn't happened, right? Or when the planning authority reasonably anticipates that the other half of the street will be dedicated, right? So the question of, have they reasonably anticipated the other half of the street will be dedicated? And unfortunately, I don't think we have a factual finding that says they considered that for sure. I know the appellants say that they, that that was a basis for it, but maybe this is an instance where we remand and say, hey, look at this, tell us whether you reasonably anticipate, or is it something where we can look at the record and determine that the Planning Board did reasonably anticipate that the other half of the street would be dedicated.

That would be the— I think where my question is going to lead. Well, don't you think by reaching the decision that they did, that they reasonably assumed? Yeah. Yeah. See, and that's the last piece of my kind of step-by-step process on the analysis as I was thinking about this, um, even last night as I was refreshing my notes on it, is that last question, right?

Can we assume that that was their understanding based on the findings that we do have, or is it something that we need them to kind of expressly state in their findings to say, you know, we, you know, reasonably anticipate the other half of the street will be dedicated, finding a back number, you know, whatever number it happens to be. That's the question that I have, and that's where I thought I'd stop and pose that as a discussion point. Because I think that's what— I think that's what this comes down to, at least in my analysis of it. And then I guess procedurally, is it possible for the appellants, you know, if the Planning Board reaffirms their decision, can the appellants then if they choose to appeal it or ask the court for a quiet title action directly without coming back through us? Yeah, yeah, they totally can.

I don't think there's any reason they couldn't do it now. They just file a quiet title action, um, seek a— they could even seek a preliminary injunction stopping the, the, you know, the procedure, deal with it in the court. Um, and then that's, and that's, you know, that's for the parties to decide whether they want to do that or not, right? Entirely their prerogative to decide that. But it seems to me to speed the issue along, that's the, that's the crux of it that needs to be decided.

Yeah. And since we're not the body to decide it, we should kind of get out of the way. Yeah. And, and if, like you said, if the appellants choose, or if the appelis whoever wants to get— seek that action, then they can do it directly.

Yeah, I just want to make one, um, point here. Uh, Anchorage Municipal Code 21.03.050(a)(11)(c) says that findings of fact adopted expressly or by necessary implication by the lower administrative body may be considered as true if they are supported in the record by substantial evidence. I just, I'm not sure. I just want to make sure, you know, though. So, findings by implication can be reviewed by this board, by necessary implication.

Yeah. So, so it's kind of one of those, um, the analysis in the legal field, sometimes, sometimes lower part of the report has error, but it ends up being harmless error because, yeah, okay, that was wrong, but it doesn't matter because we're reaching the same decision because there's other evidence that exists and still reaches you to the same conclusion. Okay.

Hmm.

Well, maybe let's camp on this question of, is that an implication that we can draw from the record and draw from the findings that the Planning Board, that they reasonably anticipated the other half of the street would be dedicated. And what about— maybe we should go back to Courtney's, where you ended, we must determine if they made a legal or factual decision. Yeah, yeah.

Um, my, my view of it is that the language in finding, in finding B in, uh, in the, uh, findings made by the Planning Board says that they determined that the easement exists, right? Um, determining that an easement exists in my mind is establishing the validity of the easement, right? Not, um, and that is— it's from my research, it's a combined legal and factual issue. So there's some issues that are issues of fact, some issues are issues of law, and sometimes courts say this is a hybrid type of a thing. So in my mind, it's legal, it includes an aspect of legal issue.

So it's not a purely factual issue. And it's kind of, in my mind, it's kind of one of those things that if it's a little bit legal, then it's out of bounds, you know? Okay.

I guess it has to be a little bit legal because it's, a legal issue, even though they may not have the legal authority to make the determination. So there's— right, right. So, so, and if they didn't have the authority, then they stepped out of bounds by making that, that determination. And it might be cured just by striking Finding B and us coming to the conclusion that a necessary implication of the findings below was that they assumed, reasonably assumed, that the dedication would happen on the other map so we don't disturb the end result of the subdivision being approved, but we still preserve the fact that, hey, there's no actual effect here of establishing the easement is valid. And if the parties want to litigate that, that's still an open question.

They should go to the court to litigate that. Yeah, so it does, it does as little as possible to the, to the lower findings. That's, that's, that's where I think I'm landing on it, um, as we're, as I'm considering it. But I didn't want to just lay that out there without getting some insight from you guys. Well, that summarizes where I felt very clearly.

Yeah, they may not have made the final determination, and they might admit they don't have the authority to, but when they, um, they clearly know that the street needs to be, what, 50 or 60 feet wide, and they only have 25, right, without the section line easement. So You put it all together, they know they need the section line easement to conform to the subdivision requirements.

Well, their findings real quick, that's record 12, I think, right? It starts on R10. Yeah. Thank you.

So, the process of dedicating the section line easements, this is something I'm just generally unfamiliar with what that process would be. I think it's the DNR that would do it, right?

Anybody know? That's my understanding, but they would have to make a formal determination. Okay. So, one of the findings of fact that the planning board did make is in A-1. They were basing their findings on information provided by the Department of Natural Resources, um, et cetera.

We are to believe that there is a certain— there's a section line easement on the west side of the lot immediately east of Mills' property. It sounds to me like evidence from the DNR influenced the decision that they made, which would lend itself to the, to the reasonable, you know, anticipation that the Section 90s note would be dedicated, right? You know, I haven't reread all the material, the Meacham letter, the Fawlesy letter, all that stuff, but I think there was a lot of material in that that led you in that direction. So yeah.

Yeah, it's a unique— it's a really kind of interesting legal question whether or not the easement exists, but that's, you know, that was, I think, kind of the issue before is that part of the Mitchell— so the prior appeal, there were information that wasn't in the file, and that was why we were mandated to say, hey, consider all this information. Okay.

And this information, you know, it looks to me like they considered a lot of information regarding you know, this Hmong policeman.

It was fascinating to read all the history of it, you know, back when we had that before us. Well, well, and that history is all part of what led me to believe that it needed to be ultimately decided in the court. Yeah, yeah. There's a lot that comes into play there. So, so let's kind of reframe where we're at.

So if, if this is a— if this determination and finding is at least partly legal determination, and at least both the parties seem to agree and we independently agree that the Planning Board can't make the legal determination on the validity of the Section 9 easement, then Finding B would be erroneous. But as the question of whether or not there's still substantial facts, findings to maintain the affirmed overall decision, that's a question of whether or not So AMC— I lost the citation— 2108.40.83 is met.

And I'm not hearing any of us believe that it's not met. Mr. Probst, do you have any— I'm sorry, I was—. You repeat. Yeah, I guess, I guess the question is, does anyone think that the planning board did not reasonably anticipate the other half of the street would be dedicated? No.

So I'm going to go on a limb and say, I think we're all in agreement. On, on the issues on this one.

Is there anything we haven't talked about but we should talk about?

No, and I think you're framing it as maybe mostly a factual issue but influenced by, yeah, legal part of it. Yeah, as a hybrid. It's a good way to— and that's kind of troublesome too, is that, you know, because Applying the law to the facts is something that any administrative body has to do, right? So it's— there's a really fine line, I think, between applying the law to facts and then making a validity statement that the Section 1987 is valid. And that's a— maybe that was a word choice issue with how they phrased Refining B, but as I read Finding B, that's, that's how I see it.

So, so, yeah. I have, I have a comment just procedurally. Yes. This board can modify the platting board's decision, and if it does so, it must modify the decision and be in a form which finally disposes of the case on appeal. Except if it's remanded.

So if we're talking about modifying, we just have to make sure that it completely disposes of the case unless there's an issue that's remanded. We're thinking about how, how the decision is going to be made with this board, right? So if we were to say strikes Finding B and include a specific finding that says Um, was it necessary implication that the other half of the street has been dedicated? Uh, yeah, I'm looking for the— you said language about how we can, we can consider facts that are, that are necessary by implication of what the Planning Board determined by necessary implication. Yeah.

So using that language, right, to establish in the record that the— that there is a reasonable anticipation that the other half of the street will be dedicated.

I don't know how to word it yet, but we maybe we can spend a little time wordsmithing. How to make that make sense.

But in my mind, that would dispense with the issues other than the legal issue that's still out there that the parties can decide to file a quiet action or quiet title action.

I think that would dispense of the issues.

It might be worth noting in any modified decision that there's no— that this board is not making, nor does the Planning Board make any legal finding regarding the validity. And again, citing to that quiet title statute about if you want to— a final determination about validity, you have— there's a court procedure. Yeah, I agree. I agree with that. Yep.

Yeah, I think that the inertia created by administrative agency findings is troublesome when you get to courts and they done things they shouldn't do, right? Is that there's a court, there's a legal principle in case law that basically says, hey, findings made by administrative agencies, those are owed deference. So we don't want to create inertia where we don't have authority to create inertia. I mean, I don't think the planning board did anything that I wouldn't have done or agreed with if I were on the planning board. Right.

Um, and, uh, you know, it's the kind— the ball kind of goes back to the appellants then if they want to challenge it. Yeah, they can. I mean, I agree. I think the Planning Board did exactly what we asked them to do before, which is, hey, hear this case again but consider all the evidence. Yeah.

Um, it's just a matter of, in my mind, the language used by— in paragraph B that is troublesome.

Okay, well, in that case, I think we've exhausted that discussion. We can go ahead and go back to our normal Robert's Rules of Procedure, and I guess I'll— maybe I'll phrase this. I'll move to Amend— was it amend or substitute? What was that? Modify.

Modify. Modify the Planning Board's findings in the following ways. First, striking Finding B.

Second, finding that there is a reasonable anticipation that the other half of the street will be dedicated.

And then pursuant to Anchorage Municipal Code 21.08.040A3, that gives the— that then permits the plat to be approved.

And then finally, this— neither the Planning Board nor the Board of Adjustment has authority to find legal validity of a section line easement, and none of these findings or conclusions are intended to have any effect on the legal validity of the existence or nonexistence of that easement.

Can you repeat that quickly? Yes. Thank you. Would you like me to repeat it? You were typing fast.

Chair Rose, move to modify the Planning Board's finding in the following ways: 1, strike finding B, 2, find there is a— that the Planning Board reasonably anticipated that the other half of the street will be dedicated according to— I don't have the site, but I will find it— which permits the plat to be approved. And then 3, neither the Planning Board or the Board of Adjustment has authority to find legal validity of a section line easement.

No findings, conclusions have an effect on the legal validity. If we're modifying their— question for you— if we're modifying their findings, can we put in their findings that the Board of Adjustment doesn't have the authority? That's outside of their realm of— see what I'm saying? It's kind of chicken and egg. I think you're right.

Maybe it's not in the modified version, but it can be as with our remandage in our conclusions that the Board of Adjustment doesn't have Okay, I think you're right on that.

So, so moving that to where it's more appropriate. Is dedicated the right word to use? That's the statute. Yeah, that's, that's how it's written here in the statute. Okay.

Um, Planning Authority may approve the dedication of half street only when the other half of the street has been dedicated or when The planning authority recently anticipates that the other half of the street will be dedicated.

Good. I just wanted to make sure we're not assuming the planning board will dedicate the other half of the street, just their half of the street. Yeah. Okay. Yeah.

Right. I think that language is really important and that's— I think that's important using— yeah, that's a good point. We share the code citation at 21.

08.040A3. Thank you.

Okay, so there's a motion on the floor. Anyone want to second? I'll second. Yes, thank you. For purposes of discussion, does anyone have any further discussion on this issue, this motion.

Um, so procedurally, uh, we'll vote on this and then you write it up again and you send it out to make sure that it's the way we understand it to be. Okay, correct. Yeah, yeah, and I imagine there might be a little more wordsmithing next time that we sometimes do just to make sure the language is good. It sounds fine to me. Okay.

Okay, with no debate, I'll call a vote on the motion then.

Yes. Member Mule? Yes. Farah? Yes.

That passes 3 to 0. Excellent. So then, in terms of procedure, you'll write that up, and then we will meet again to discuss that draft. That does conclude the issues on appeal 2024-02. That does take us to our next item of business, which is a scheduling point.

I did remember this time. So let's, I guess, start with— Miss Kitchen, how long do you think you need to wrap that up?

I can have it to you by Monday the 5th. Is that reasonable? I feel like I want to— I would like to—. Yeah, sounds fine. Give some finality to the parties here.

Um, how does Friday the 9th look for everyone's calendar?

Sure. And is this an in-person? This could be hybrid. Okay. I'll probably appear by Teams.

Yeah, we'll have the room open, but you can— I will actually be out of town, so I will appear by Teams, but I can— I'll— we'll figure out— I'll get the decision to you, you'll sign it. Yeah, we can do the print, sign, move around. We've done that before. Okay, great. I'm still looking at something.

What time were you thinking? Uh, probably late morning like this, 11 o'clock, 10 o'clock, something like that. I can do that.

There's a small possibility that I might be volunteer teaching that day. Let's, let's not risk having to reschedule. Do I Do I need to be here? Quorum. Okay, we're quorum.

Okay, that's right. Um, so is there—. I hate you to look for a different time because it's, you know, no, that's 20% possibility or something. I haven't just—. I think we should— it's fine, let's pick a date where everybody's—.

Where we're good. Well, let's not go far away from that. Correct. Uh, uh, so the way that— the way that I typically do it when we're comparing lots of calendars, the person who has conflict then suggests the next. Okay, fair enough.

Uh, what about the day before that? Thursday? Yeah, uh, I'm available. I can make— I can be—. Okay, sounds good.

Do we— we have a room available for that? But I can't do much later than that, except 2 meetings starting at 1. Let's go for 10 AM on the 8th of May. Again, hybrid, but I expect it sounds like most of us are going to be remote.

You do have an hour for that though? Yeah, I have 45. Okay, great. Yeah, great.

So, for, for Member Mueller's benefit, Ms. Kitchen will send out a draft findings of fact, conclusions of law. So we usually come in with our kind of, you know, edits and comments ready, and we just rip through them. Okay. One at a time.

And usually those are all adopted by any— without any debate, because they're usually just pretty standard things. But if there is anything significant, we'll hash that out. Thank you. If we see something, like when we get the draft on Monday night or whatever, I think I've done this before, you know, find a little thing and send it back to Courtney, you know, that's right, change this. Can we do that prior?

Absolutely. When you do that, and this is probably what you were just going to say, don't copy each other. So, uh, Open Meetings Act, we can't be in communication. You can talk directly to her, so just be careful not to, not to reply. I'll just direct her.

And that is really helpful because then if there's long edits, we don't spend our time me saying, repeat that, repeat that. And so that is really helpful. And then I have all those on my radar too. Perfect. I think mine was a comma last time.

It was. And it was an important one. Okay, well, with that then, we'll get the meeting notice sent out. We'll go to the rest of the agenda. So nothing on old business.

Member comments. Mr. Provost? I don't think I have any. Okay. Nor do I. Ms. Mueller, do you have anything?

Nope. You're good? No. Okay. Audience participation.

I'll open the microphone for audience participation. A note that we cannot hear comment or testimony or argument on any cases before us. That includes the current case. So keep those to yourself. But if anyone has any audience participation, If you're, if you're on the call, go ahead and light yourself up, or if anyone here, just raise your hand.

Seeing none, I will entertain a motion to adjourn the meeting. Second. Okay. You were going to move. You moved.

I wanted you to move. Move. I'll second. All right. Meeting adjourned.

Meeting adjourned.