Rosauer v. Manos
440 P.3d 145
Alaska2019Background
- Chris and Jeanne Rosauer own a house abutting a municipal right-of-way in Girdwood; neighboring owners Thomas Manos and Jody Liddicoat live across the street.
- Manos hired Greatland Tree Service to remove cottonwood trees located in the municipal right-of-way in August 2015; no permit had been obtained before removal.
- Anchorage Municipal Code requires permits before using public places, including removing trees from rights-of-way; Greatland later obtained a permit in October 2015 (a retroactive permit).
- The Rosauers sued Manos and Greatland under Alaska’s timber-trespass statute, AS 09.45.730, claiming removal was done "without lawful authority."
- The Municipality reviewed and declined to invalidate the permit, explaining the removal benefitted municipal maintenance; the Rosauers did not pursue further administrative challenge.
- The superior court granted summary judgment for defendants, concluding the retroactive permit supplied lawful authority and defeated the Rosauers’ statutory claim.
Issues
| Issue | Plaintiff's Argument (Rosauer) | Defendant's Argument (Manos/Greatland) | Held |
|---|---|---|---|
| Whether a retroactive municipal permit can defeat liability under AS 09.45.730 | Permit requirement in AMC must be satisfied before removal; retroactive permit was outside the municipal agent’s authority | AS 09.45.730 is silent on timing; a later permit can supply "lawful authority" and the code allows waiver of permit terms | Court held retroactive permit valid; it conferred lawful authority and negated the "without lawful authority" element |
| Whether Rosauers had standing under AS 09.45.730 despite not owning the underlying right-of-way | Homeowners abutting the street are owners “in front of a person’s house” and can sue even if they don’t own the fee | Statute’s remedy applies only to the owner of the land where trees stood | Court did not decide standing because the retroactive permit resolved the case in defendants’ favor |
Key Cases Cited
- Kelly v. Municipality of Anchorage, 270 P.3d 801 (Alaska 2012) (accrual and related municipal-law discussion)
- Wiersum v. Harder, 316 P.3d 557 (Alaska 2013) (describing AS 09.45.730 as a timber-trespass statute)
- Municipality of Anchorage v. Anchorage Police Dep’t Emp. Ass’n, 839 P.2d 1080 (Alaska 1992) (discussing delegation of municipal authority)
- Alyeska Pipeline Serv. Co. v. DeShong, 77 P.3d 1227 (Alaska 2003) (standard of deference to agency expertise)
- Municipality of Anchorage v. Suzuki, 41 P.3d 147 (Alaska 2002) (deference to agency determinations in area of expertise)