*1 PAVLIK, Pavlik, Michael J. Jennie L. Pavlik, Pavlik, Rudy
John Andrew Pav
lik, Pavlik, Younger, Paul Steve Gene Younger, Ogle, Ogle,
vieve Homer Neva
George Ogle, Johnson, Appel and Anna
lants, Alaska,
STATE of DEPARTMENT OF
COMMUNITY AND AF REGIONAL
FAIRS, Commission, Local Yakutat, municipal
and the
corporation, Appellees. YAKUTAT,
The CITY OF
Cross-Appellant, PAVLIK, Pavlik,
Michael J. Jennie L. Pavlik, Pavlik, Rudy
John Andrew Pav
lik, Pavlik, Younger, Paul Steve Gene Younger, Ogle, Ogle,
vieve Homer Neva
George Ogle, Johnson, Anna Cross-
Appellees.
Nos.
Supreme Court of Alaska.
Dec. Juneau, Petersen, F.
James lants/cross-appellees. *2 the Yakutat Atty. Asst. and On October of
Rodger Pegues, W. Gen. the Gen., Juneau, petitioned Local Commission Gross, for Atty. Avrum M. adjacent May to annex certain land.1 On appellee of Alaska. State properly the held a commission Anderson, Hedland, Fleischer Patrick M. petition. on the The area hearing2 noticed Friedman, Anchorage, for & was not in which the live twelve City of lee/cross-appellant Yakutat. for part the land considered originally of resi- landowners and annexation. These CONNOR, RABINOWITZ, J., Before C. hear- dents, therefore, did attend JJ., BURKE, MATTHEWS, DI and and hearing it was for ing.3 proposed At MOND, Senior Justice.* petition first time the annexation land, larger of amended to include be appellants’ property. included OPINION which could have discontinued The commission CONNOR, Justice. time and notified proceedings at appeal This action chal- area, arises of additional owners residents of lenging the annexation land to pro- appellants, of which would include land, of Yakutat. The court entered of their so posed annexation on summary judgment held, for hearing the defendants have been at new could equitable estoppel. basis ex- of laches and owners residents could have In- We on the annexation.4 pressed affirm. views * 10.080, Dimond, Justice, requires sitting by assignment petition. 19AAC Senior IV, pursuant notice, part: made 16 of the article section this states relevant Constitution of Alaska. depart- “Upon receipt of notice from the petition and brief have been ment accepted, action, by 1. The state initiated petitioner shall cause notice X, pursuant Alaska to article section of the filing petition published be in a 44.19.260, by than Constitution and AS local rather newspaper general in the terri- circulation governing regulations, there- action. The tory. speci- Such shall be in the form fore, are 10.010-.180. those set forth in AAC Department fied Commissioner 10.090, requires 2. 19 AAC notice and Regional Community shall Affairs and hearing, provides: explanation proposed include boundary brief “The shall time commission determine the petitioner, change, the name place hearing held which shall be municipality name of whose bound- each territory. in or near the At least fifteen changed, aries are to and shall indicate be prior hearing, the date of the commis- may place petition be and brief where the sioner shall cause notice of the provided inspected public as in sec. 60 given upon: and served certified mail chapter.” of this (1) municipalities specified all 60 of at sec. newspaper and Yakutat does not have its own chapter: posted petition notices of were therefore (2) any person municipality or city. Appel- prominent places in the several lants knew of the answering pursuant filed an sec. 100 brief notices, posted because chapter.” original petition prop- not involve their the erty, they did See AAC 10.130. had no reason to concerned regulations hearing, for a call proceedings or the com- the annexation attend regulations provide is of for fects: also interest that hearing. misson’s self-executing procedural waiver de- regulations provide amend- The for the do “Compliance regulations with the prop- petition ment of a for annexation and chapter may be waived the commission entirely procedures, are not clear. er rights are not substantial interested however, evident, that the commission It seems prejudiced by Any such waiver. deviation pro- hearing after the have held a new should chapter procedures from the set forth in this purpose posed amendment because and is waived unless the com- commission hearing requirement 10.- of 19 AAC notice 090 is their objects.” party mission or a permit persons interested 19 AAC 10.150. 10.- views the annexation. 19 AAC on 130(d) commis- property being states at the “the 3. The owners of the considered original petition of all or interested for will hear the views annexation under the sion ” given proceedings by persons political alerted to or subdivision.... the notice stead, commission, judgment for the the commission reconvened for a de- state and meeting hearing, cisional after the shortly on the basis of laches. facts are not approved the annexation amended. dispute and thus need examine decision to effect was A formal entered judg- appellees whether entitled to 12,1976. January The commission’srec- ment as a matter law. Alaska ommendation the annexation was R.Civ.P. 56. not overturn We will a trial legislature presented to the Alaska on Janu- *3 court’s that an action is barred decision 19, ary disapproval 1976. No resolution of laches unless we have firm and definite and, legislature introduced in the conviction that a mistake been commit- became the annexation effective Williams, 201, Young ted. 583 P.2d 4, March on 1976.5 (Alaska 1978). As stated in Moore v. 3, 1978, years November two On 8, (Alaska 1976): 553 P.2d eight months after became “The to sustain decision a defense effective, appellants against suit filed properly based on laches addressed Alaska, State the Local Com- mission, court, and the of Yakutat. the discretion the trial and will City They claimed that the commission’s failure to not be unless we feel a defi- overturned provide them with and a nite and firm conviction that a mistake City the annexation of their land to the has been committed.” process Yakutat violated the due clauses of This is test the same used to determine Constitutions, the Alaska and United States findings “clearly whether a judge’s trial well regula- as certain laws and state erroneous.” n.3. Id. at Appellants tions. requested court to set aside the annexation of all analysis requires A the trial laches beyond lands those indicated commis- court to make two determinations in decid original petition.6 sion’s ing delay bringing suit. effect of a parties The court must both an unreasonable summary All moved find judg- granted ment. The appel- delay resulting in seeking prej relief and a motion, lees’ invoking the doctrines of lach- udice to the as a result of the defendant equitable es and to bar the estoppel delay. Concerned Citizens of Kenai South lants’ action. The were ordered to Borough, Peninsula Peninsula v. Kenai bear their own attorney’s costs and fees. (Alaska 1974). Consequently, and, The landowners appeal and residents whether is determined in laches exists addition, argue own that their motion for length plaintiff’s de balancing the summary judgment should have been lay against severity bringing suit granted. cross-appeals of Yakutat prejudice resulting to the defendant. request from the denial of for attorney’s As we Citizens: stated in Concerned fees. elapse specific “No time must before can be- the defense of laches be raised refusing to hear a propriety cause the We first whether the consider su perior granting gravity court erred summary claim turns as much commission cannot this if the was filed the commission do owners and After this lawsuit moved, January, residents hearing. affected land are not notified of to reconsider city’s boundaries. It reheard the matter gave appellants opportunity to be heard. reaffirmed its earli- Using commission thereafter language, identical both the Alaska encompassing Constitution, er X, decision to annex article and AS 29.- section appellants’ dispose Because we provide proposed boundary land. 68.010 change that a laches, unnecessary appeal it is based on forty-five “shall become effective presentation session, resolve second cured whether this after end of or at the origi- surrounding procedural earlier, initial defect disapproved by whichever is unless hearing. nal majority resolution concurred members of each house.” might commis affect some of the suffered defendant decisions, length delay.” again conclusion plaintiff’s as the sion’s Third, opinion. Thus, long there is a Id. at 457. where setting aside an court concluded that will be delay, degree lesser city to refund require nexation required.7 collected on taxes had assessed case, were alerted In this the landowners Finally, the annexed that their had been annexed short- serv great extent of found while “no March, 1976, ly after the effective date protec police fire provided, ices” were They that time the annexation. realized at had the annexa been available since been notified of they delay prejudicial effects tion. These hearing concerning annexation of their mentioned are in line those we property. Yet the landowners did file Co. and in Port Valdez Concerned Citizens complaint until November Valdez, fully eight they after years two months *4 (Alaska1974). of We agree knew the annexation. with of essentially is a matter Laches superior was delay court that this un- particular case “balancing equities reasonable.8 guilty plaintiffs are determine whether question prejudice of State, inequitable Moore 553 delay.” appellees presents ques- a somewhat close 1976). (Alaska striking that In P.2d 19 alone, standing light in when viewed bar, signifi the case at we think balance in appellants’ filing delay extensive in weight appellants’ cant should be accorded action, opinion preju- we are that the that area acquiescence in the annexation of adequate support is court’s dice trial voted in they Appellants reside. application of laches. The trial court relied taxes; elections; paid city they concluding ap- several that factors favorable zon they requested and received First, pellants’ delay prejudice. resulted in a mem ing; appellants one of became appellants it found that some of the commission; zoning planning ber of the and elections, city they voted in city a another sent child school in they only entitled to do because were resi- of non paying required without the tuition city following dents of the the annexation. city the fact that the suf residents. Given The setting court believed that aside the appellants’ prejudice fered some that elections, could affect these a a “defi acquiescence, cannot arrive at opin- conclusion which we conviction that a mistake has nite firm Second, appellants ion. one of the had be- superior court in by been committed” city’s planning come member balancing Young, 583 equities. See zoning commission, again position that 204; Citizens, P.2d at P.2d at Concerned 527 only city. could a resident held trial court concluded that the annex- aside, superior party’s ation were set vote would Thus we affirm the court’s laches, precludes appellants have to on all matters heard be discounted conclusion that member, asserting In commission while their claim.9 view interdependence pursuing analogous 7. We be- of chal- have alluded actions issue lenging municipality’s incorporation. delay tween the elements prior opinions. numerous See Wolff v. Arctic reject appellants’ argument the trial Bowl, that Inc., (Alaska 9. We 1977); 560 P.2d 767 considering public inter court erred State, (Alaska Moore v. 553 P.2d 15-16 assertedly imbuing position. est 1976); Kenai Concerned Citizens of South Pe- 1976). (Alaska Ap Moore v. 553 P.2d Borough, ninsula v. Kenai Peninsula 527 P.2d pellants argue in their that interest (Alaska 1974). enough important is when balanced action the trial with other factors considered interesting It is to note that AS 29.18.150 sets court, tip it in their favor. We the scales private a six-month statute of limitations on disagree. they action The interest claim their DIMOND, Justice, joined we need reach the disposition, other Senior MAT- THEWS, Justice, dissenting. arguments appeal.10 advanced on
I agree majority’s holding with the appellants’ delay ac- bringing this II years eight months after tion —two. City On cross-appeal Yakutat they knew of annexation —was unrea- argues superior court abused its disagree holding sonable. But I by failing discretion to award the its to the Yakutat attorney’s 82(a)(1) provides fees. Civil Rule adequate support superior court’s recovery, that absent a monetary “attor application so as of laches to bar the relief fees ney’s prevailing party may for the appellants seek. fixed the court of the costs The superior found that some action, discretion, in a reasonable city elections, voted We superior amount.” will not reverse the they they were entitled to do because court’s decision unless is manifestly un were residents of the after the annexa- Lind, Tobeluk v. reasonable. tion. The setting court believed that Rice, (Alaska 1979); Palfy affect annexation could those elections. (Alaska 1970). believe that here mistaken. Yakutat Ordinance 4.36.020 the city’s court denied provides challenged election if an is not
quest
attorney’s
on the ground
fees
within
ten
when the
results
plaintiffs
“the situation
put
that these
*5
con-
declared the election results “shall be
the lack of
was enough
clusive,
valid in
respects.”1
final and
all
that
the
suggest
public generally ought
ordinance,
By its own
Yakutat’s
the
attempt
bear
burden of their
to contest
if
elections cannot be affected
a contest
it.” We do not believe this reasoning is
approximately
days
not initiated within
ten
manifestly
Therefore, we
unreasonable.
af-
of the election. There is no means
the
firm
court’s decision.
past
the
in
appellants’ votes
elections could
judgment
is AFFIRMED.
now be set aside.
public
adopted
brings
involves is the
when
an
interest the
has in the
there is that
the state
right,
functions,
vindication of a
governmental
constitutional
which in
action that
involves
right
this case is the asserted
to notice and
the
invoke
the
defendant cannot
laches to bar
before one’s
is annexed. The
nearly
opposite
prin-
action. This is
the
of the
trial court
there
concluded that
is no constitu-
ciple
provides
suggested
authority for
right
tional
a
to notice and
in annexa-
Further,
appellants’ argument.
rejected
proceedings.
assuming
tion
Even
that there is
Moore,
argument
their
where we stated
right, question
reach,
such a
a
dowe
not
agree
“we cannot
...
that laches should never
present
appellants
context
‘public
applied
at
be
when
interest’ is
asserting any
public
large.
of the
interest
at
stake.”
counted
238 Ga.
Department
Human
member,
and that
while she was
Wright
mission
(1977), quoting
S.E.2d
probably affect
some of
this would
(1905).
124 Ga.
S.E.
This,
Commission’s decisions.
case,
who sat
appellant
In this
found,
would
item of
be another
color of law.
office under
Commission took
applica-
would call for the
that she was
Everyone involved believed
sought
of laches so as to bar
relief
every-
eligible to sit on
Commission
by appellants.
proper
she
though
acted
one
as
facts,
that,
these
member.
under
was mis-
believe
I believe that the
appel-
were set
if the annexation
reaching
this conclusion.
If
taken
aside,
Setting
a de facto officer.
appellant
lant
annexation were set
not affect
aside the annexation would
sat on the
would retro-
who
Commission
decisions.
validity
lose
as
resident
Commission’s
spectively
her status
Yakutat, and
would be
thus
the doc-
applying
As another reason
been a
retrospectively disqualified
have
laches,
superior court found
trine of
doc-
But the
member
Commission.
services”
great
while “no
extent of
prevent
of “de
officer” would
trine
facto
provided, police
protection
fire
decisions
having any
effect on the
been available since
annexation.
made
the Commission while
services,
municipal
The mere fact
was a
lant
member.
protection, have been
police
and fire
such
person
This doctrine
that a
provides
the annex-
available
since
*6
governmental
to
office
ineligible
is
hold a
of their land does not constitute
ation
assumes
under
of law
the office
color
prejudice necessary
support
type of
official acts cannot
a de facto officer whose
finding
prejudice
The typical
laches.
disqualifi-
challenged
on the basis
from
attack
resulting
city
to a
a belated
As
stated:
cation.
one court
is that
performs
person
A
who assumes and
to the
already extended substantial services
office under color of
the duties
area,
im-
making
street
annexed
such
authority
recognized
accepted
and is
electrici-
provements, supplying water and
by all
rightful
as the
of the office
holder
systems, sidewalks
ty,
installing
sewer
officer,
deal
him is a de facto
v. Trustees
curbing.
Alexander
though
may be
even
there
defects
Middleton,
823, 452
Village of
92 Idaho
P.2d
appointment,
manner of
or he was
his
50,
Village
(1969);
52-54
Finucane v.
office,
eligible for
or he failed
Hayden,
Idaho
precedent
conform
some condition
(1963). No
of this nature
services
assuming the office.
in which
provided
the area
live.
Miller,
Kan.
State v.
(1977),
Founda
quoting
Hospital
Olathe
applied the
Finally,
superior court
tion,
Extendicare, Inc.,
Inc.
217 Kan.
because to set aside
doctrine
laches
(1975).
2. The and all have as- sumed if the
nicipality undoubtedly sustains some harm required it is unexpectedly
whenever JOHNSON, Petitioner, David fund taxes that it has In some collected. circumstances, when plaintiff unreasona- ROBINSON, Respondent. Verne E. delays bly before annexa- challenging an tion, the mu- this causes No. 5948.
nicipality will be justify sufficient to invok- Supreme Court of Alaska. ing laches to bar the action. maintenance of Depending upon the size of the area an- Dec. involved,
nexed the tax rate the money in property
collected taxes
could be substantial. The the own- longer challenging
ers of the area wait before
annexation, municipali- money more
ty has collected and believes is available for Refunding money
its use. could seri-
ously po- affect the municipality’s financial However, circumstances,
sition. in other involved,
relatively little money could be so refunding the taxes not cause would
any significant harm municipality. to the
The record does not show the amount of
taxes involved. In order ascertain
whether the of Yakutat suffer
such as to invoke the doctrine of against appellants
laches if the
obliged taxes, to refund a determination
would have to be made of the amount of paid by appellants
taxes and other owners annexed I would remand case such a determination Then, then, court. can it sig-
be decided whether Yakutat would
nificantly prejudiced if it had to refund this
money to the prop- owners of the annexed
erty. In the finding by absence of such a *7 remand,
the trial court on believe
majority is mistaken in holding that laches
preclude appellants asserting from
claim. Brown, Faulkner, Banfield,
Richard B. Holmes, Anchorage, Doogan petition- & for er. Ruskin, Andrews, Lane, Powell,
Elaine M. Hicks, Anchorage, respondent. for Barker & discussion, purpose sumption tat will have to refund the taxes it validity. accept opinion collected the area. We this as- as to its