*1 record, case, unsupported conclusionary requirement satisfy an alle- this specific specific gation, not a statement fact must set forth facts summary judgment. showing that prevent genuine there is a issue sufficient to Corp. v. trial. Philadel- Franz Chemical See (5th Quartz Co., F.2d
phia We therefore AFFIRM. Cir.1979) allegations (“[M]ere general precise detailed and do not reveal which a prevent the award of sum-
facts will not point Fomby
mary At no does judgment.”) com- Riley that either them indicate municated to Whisenhunt HOMEOWNERS ASSOCI- OCEANVIEW status, makes the bill submitted joint INC., ATION, Appellant, Riley. or to no reference to Shamrock reason, itself, is complaint for whatever that of Shamrock.
Fomby’s and not name QUADRANT AND EN- CONSTRUCTION being any activity reference There no GINEERING, Royal Krest Construc- name, except that carried inon Shamrock’s tion, Flying Addi- Crown Subdivision equipment having that some trucks and 2, Property No. tion No. and Addition job. is no name on the There were used Association, Appellees. Owners person reasonable would indication that a No. 7183. equipment have that Shamrock understood an being used because Shamrock was Supreme Alaska. Court partner Fomby project. equal with March 1984. equipment that some of the mere fact thus in itself bore name is insufficient issue as whether create a factual doing
alleged joint venture business name, in in Shamrock’s
with Whisenhunt specific denials of Whisenhunt’s joint
any knowledge that a venture was
involved.7 case where relevant
This is not a issue, is,
ultimate factual the fact “doing alleged venture was
whether the project respect to this
business” with name, being capable Shamrock only by indirect or circumstan-
established Compare, e.g.,
tial Rent- evidence. Alaska
A-Car, Ford Motor Inc. v. Fomby’s broad not, under facts of
generalization does distinguished registered will if one of case is Alaska Protec- ture "be considered Services, Colorcable, Inc., appears Inc. v. Frontier tion the ... venturers whose name 1119, (Alaska, 1984). Frontier, name under which the venture does business is a name, corporation, registered registered.” alleged joint under one Since the venture did en- regis- tered a another do contract under name. We not business under the name held venturer, Shamrock, prohibits joint unregis- tered that AS which venture was bringing properly registered purposes not AS tered contractor from suit is not violat- Also, registered 08.18.151. would be ed contractor in fact is Whisenhunt when the clearly protected by present bond case we are Shamrock’s until bonded. In the concerned first there was in with of AS 08.18.011 determined that fact the section which defines joint provid- joint regis- venture bond when a venture is to be and that Shamrock’s considered specifically provides coverage. joint tered. ed It ven- *2 setting Zoning Board of aside (“Board”) Appeals of or-
Examiners by the Enforcement Of- ders issued Anchorage Department of fice of the Pub- Office”). (“Zoning Enforcement lic Works Zoning Enforcement Office’s orders *3 the use of improvements to and restricted airstrip, private airstrip Flying the Crown Anchorage in a residential area of located twenty airplanes. The and used about (1) only issues raised on are whether procedural errors in Board committed the orders; (2) deciding to revoke the support evidence substantial decision; (3) supe- the the excluding items rior court erred in certain Appeal; the Record on and wheth- awarding superior court erred er the ap- attorney’s against fees Oceanview on the Board’s decision. For the rea- peal of below, we hold that neither sons set forth superior court erred on the Board nor the issues, and we therefore the first three decision as to the affirm inter- We hold those issues. attorney’s fees awards exception to est Breeze, Anchorage, appel- for A. Robert case, therefore reverse in this and we plies lant. superior court’s award Jensen, Jensen, Harris & Kenneth D. against fees Oceanview. Sherman, Roth, Anchorage, Bruce F. and Const, Quadrant Anchorage, appellees for AND PROCEDURAL I. FACTUAL Engineering Krest Const. BACKGROUND Co. airstrip is bounded Crown Resch, and Ann Waller Peter A. Lekiseh right- Railroad parallel to the Alaska Lekiseh, Anchorage, appellees Hoge & adjacent to devel- of-way to the east and No. 2 Addition Flying Crown Subdivision developing residential lots oped and Property Owners Assn. Addition No. Geolog- airstrip appears on U.S. west. The RABINOWITZ, BURKE, C.J., Before 1962 and Survey maps as far back as ical COMPTON, JJ., and MATTHEWS for use as a improved expanded SERDAHELY, Judge.* Superior Court facility during 1960s. In is now the purchased what John Graham OPINION Subdivision, included which Flying Crown COMPTON,Justice. ac- Graham part of the as remainder of the quired zoning dis- out of a appeal arises North Subdivi- what is now Oceanview Homeowners pute. Appellant (“Oceanview”) objects to sion. Association, Inc.
* by assignment tution of Alaska. Judge, sitting Serdahely, IV, the Consti- Section 16 of pursuant to Article Zoning Enforcement purchased properties, Late
When Graham
complaints
Office received a number of
any particular
was not zoned for
the area
expanding the use of
Krest was
However,
1972, the
in March of
use.
adding
runway
airstrip by
dirt to the
Anchorage
Borough
Area
Greater
improving the
and otherwise
access and
(“GAAB”)
single-family
zoned the area
complaints
facilities of the
These
airstrips
At
time
were
residences.
Crown members
adequate
these zones “if
permitted within
using
airstrip in a manner
were
which
approach
provid-
and noise
areas are
buffer
zoning
restrictions.
violated
21.05.050(B)(4)(C).
ed.” GAAB Ordinance
complaints,
Enforcement
pre-dated
imposition
use
As a
which
enforcement orders in
Office issued three
zoning,
A letter
and December of 1980.
November
“grandfathered
in”
use
as a conditional
Crown demanded that
sent
Anchorage
the local ordinance.
Mu-
Crown:
members
*4
(“AMC”)
A
nicipal Code
21.55.110. month
allowing
using
1.
or
to be used
Cease
effect,
zoning plan
into
before the
went
Flying
A-l
Crown for tie-
Tract
of
sold off the northern half of the
Graham
downs, taxiing
airplanes
or land-
it,
surrounding
airstrip and the land
but
ings
except
and takeoffs
for owners
portion
develop-
retained the southern
using
of those lots who were
ment
into what
later became the
landing strip
purpose
for that
at the
Crown Subdivision.
rezoning
time of
in March of 1972 or
Appellees Flying
Ad-
their successors.
Crown Subdivision
Property
dition No. 1 and Addition No. 2
making
causing
made
2. Cease
or
to be
Crown”)
(“Flying
Association
com-
Owners
physical
any improvements
in the
prise
group
of residents who live on
landing strip
features of the
without
developed lots near the southern half of the
applying
first
for a Conditional Use
permit
Planning
Zoning
and use the
as a base for
from the
and
improve-
airplanes.
Commission to make such
The members «of
ments.
Crown own the southern half of
Quadrant
airstrip. Appellees
Construction
similar,
Royal
The order sent to
Krest was
Royal
Engineering
and
Krest Con- demanding
company:
that the
(both
Company
struction
referred to here
A-3,
1.
fill work on Tract
Ocean-
Cease
Krest”)
“Royal
as
own
northern half
purpose
#
view North
3 for the
undeveloped
and the
lots
tiedowns,
using
parking
it for
it in the
around
Oceanview North Subdivi-
planes,
landing strip;
or a
developed
sion. Graham
and sold the lots
using
allowing
2. Cease
or
the use of
in the
Crown Subdivision with the
North #3
streets
Oceanview
understanding
the residents
paved portion
and the
of Lots 63 and
would be able to use the
taxiways;
64 for
using
allowing
the use of
Cease
same,
Royal
Krest wished to do
A-3,
any portion of Tract
Oceanview
applied
Planning
Zon-
tying
#
parking,
North
3 for
down or
ing
permission
Commission for
to build tax-
taxiing
airplanes.
[of]
iways leading into the Oceanview North
applica-
Subdivision from the
A form letter sent to the owners of air-
denied,
planes parked
at
demanded
tion was
Krest was re-
they stop using
tracts A-l or A-3 to
quired to restrict
itself to those aviation
planes. Royal
tie down their
Krest and
existed at the time the zon-
activities which
appealed
the enforcement of
1972. See
ing plan
put into effect in
these orders to the Board.
Construction,
Royal Krest
Inc. v. Munici-
pality
Anchorage, No. 3 AN-78-7612
arguments
The Board heard the
of the
25, 1980).
(3d Dist.Super.Ct.,
Appellees
testimony
Feb.
of more than
Civ.
April
noting
appellant
was without coun
on
twenty
at two sessions
witnesses
recognized
was one
evening
that the issue
1981. Late
sel and
April
parties.
Board voted on whether
Mullen
Christian
April
both
(Alaska 1982),
of the order issued to
we
uphold part
sen,
one
P.2d
Board voted to leave
Flying Crown. The
the omission of an issue from
excused
effect,
adjourned.
and then
one in
part
appeal, but
because the issue
points on
however,
night,
Board member
next
opposing
level and
raised at the trial
Brust called for a reconsideration
apprised of it. Neither of
counsel was
the mo-
he had misunderstood
vote because
mitigating
present
are
these
circumstances
voting
Upon reconsidera-
he
on.
tion was
therefore,
case;
not consider
in this
we will
tion,
the entire order to
the Board revoked
procedural
error.
granted
The Board
Crown.
specific
appeal and
Krest’s
III. THE BOARD DECISION
item of
findings of fact for each
both
de-
contends that
Oceanview
peals.
to revoke the enforcement orders
cision
Board’s decision
appealed the
Enforcement Office
issued
Designa-
As
court.
judicial
erroneous. The standard
Appeal,
tion of Record
decisions is set forth
review of Board
record,
judg-
decision
cluded the entire
“The find-
which states:
AMC
case of
ment in the earlier
Zoning Board of Examiners
ings of ...
Construction,
Inc.
*5
if, in
Appeals
shall not be reversed
...
motion to strike
granted Royal Krest’s
record, they are
the
of the whole
record. A motion for
these items from the
supported by
evidence.” See
substantial
was denied.
of this order
reconsideration
Public
City
Fairbanks v. Alaska
court affirmed the
Commission,
493, 495
611 P.2d
Utilities
opinion
awarded
an
decision without
(Alaska 1980);
Stanton,
v.
591 P.2d
Galt
Royal Krest
costs
(Alaska 1979);
960,
City
Keiner v.
962-963
appeals this
Crown. Oceanview
406,
(Alaska
Anchorage, 378 P.2d
decision.
1963)
reviewing
(applicable standard for
agency findings).
II.
ERROR IN
PROCEDURAL
RECONSIDERA-
BOARD’S
upon
called
to decide
The Board was
TION VOTE
addressed
the
the activities
orders violate
Enforcement Office
contends that
reconsider-
they
concluding
In
that
zoning
laws.
taken,
already
the Board violat-
ing a vote
not,
the Board found that
did
governing re-
requirements
regulatory
ed
landing
airstrip
used as a
area
Flying Crown and
consideration. Both
zoning, and that the
airplanes prior to
argue that
waived
Royal Krest
since 1972.
use has been continuous
procedural
the issue of
right to raise
its
failing
hearing by
at the Board
defects
airstrip
found that the
The Board also
points
in
on
include
intensified,
greater
in
num-
that
use had
superior court.
airstrip,
using the
airplanes
were
bers
that
no evidence to show
general,
an issue omitted from but found
finding
points
ap
expanded.
had been
appellant’s statement of
an
application
the test
by this court. was based on an
peal will not be considered
Chuckran,
210(e);
Bridgewater
in
v.
R.App.P.
used Town
Alaska
Glacier
Jeffries
20,
(1966).
(Alas
351 Mass.
created in owners who moved into IV. LIMITATION OF RECORD ON APPEAL Crown after more harm would halting result from use than argues Oeeanview that permitting it to continue. in excluding erred from the record on appeal the proceedings and decision in Roy- Our review of the record indicates Construction, Municipali- al Krest Inc. v. findings supported by the Board’s are ty Anchorage, No. 3 AN 78-7612 Civ. substantial evidence. The Board based its (3d 25, 1980).' Dist.Super.Ct., Feb. findings presented on evidence in two case, Royal Krest asked for and was denied nights hearings. surveyor A testified permission expand Crown air- graded property he staked and *6 strip by extending taxiways from the air- 1963 in order to make it suitable for use as strip into the OeeanviewNorth Subdivision. airstrip. Long-time residents testified superior The court held that the Board’s before Board that the had been finding expansion development evidence, in use since the 1960s. Other create Crown would affidavit, offered at least showed that safety problems reasonably supported planes regularly six used the be by the record. Oeeanview contends that tween 1970 and 1975. There was also testi supplied because it record of mony airplane owners who lived in Board, to the Krest the case should have regarding subdivision in appeal been included the record on to the they investments had in im superior court. provements, regarding expecta upon purchasing tions in agree any lots the subdivi While we matter they sion that would be able to use the to an agency submitted administrative in airstrip. Although adjudicative there was some in an proceeding may evi volved findings, dence to contradict the appeal, be included in the record on we find weight testimony supports that the court’s error was harm event, any Board’s decision. less. On from an administrative 1. As used the Board "intensification” referred letter to Krest and the form letter sent to (See to increased use of the The Board airplanes parked owners of at the geographical expansion found that no had taken 5-6). supra, p. hearing at At the before the place since 1972. Municipal Attorney Board the conceded that the other orders need not be enforced since there only paragraph 2. The contested orders are 1 of they was no evidence that had been violated. Crown, paragraph letter to 3 of the
799
general importance.
involve issues of
646
superior court we review
appeal to the
We conclude that
P.2d at 222-223.
Ocean-
determination
merits of the administrative
designed
appeal was
to vindicate a
view’s
supple-
except to the extent
directly,
strong public policy
effectuating zoning
evidentiary proceedings have taken
mental
ordinances,
people
that numerous
in the
National
superior court.
place in the
had it
area would have benefited
succeed
State, Department
Bank
Alaska v.
ed,
only
party
and that
a
could have
Revenue, (Alaska 1982).
816
expected
bring
appeal.
been
Ocean-
reviewed the excluded material
We have
emphasis
consistent
on health and
view’s
appellant’s
substantive contentions
safety
exclusion of
to the virtual
economic
bearing
find that
it has no
on them.
concerns indicates that
it would not have
bring
incentive to
had “sufficient economic
ATTORNEY’S FEES
V.
the lawsuit even if it involved
narrow
partial attor-
court awarded
Ke-
lacking general
importance.”3
issues
ney’s
Crown and
Thus,
nai Lumber
AFFIRMED
part. Justice,
BURKE, whom SER- with Chief dissenting part.
DAHELY, joins, Judge, resolution disagree with the court’s
I my view it attorney’s fees.