Opinion
No. 752.
June 12, 1967.
Appeal from the Superior Court, First Judicial District, James A. von der Heydt, J.
Douglas L. Gregg, of Stabler, Gregg Kohls, Juneau, and Joseph R. Henri, City Atty. of City of Juneau, for appellants.
Norman C. Banfield, of Faulkner, Banfield, Boochever Doogan, Juneau, for appellee.
Before NESBETT, C.J., and DIMOND and RABINOWITZ, JJ.
On March 8, 1963, appellee Marjorie Cropley filed an application, pursuant to Juneau's Tidelands Ordinance, for a deed to a tract of tidelands situated on the seaward side of the intersection of Whittier Street and West Willoughby Avenue in the city of Juneau. Appellee's application was contested in part by the city of Juneau. Thereafter, appellee was accorded a hearing before a tidelands hearing officer. This hearing officer recommended that appellee's application be denied as to the disputed portion of lot 2. The City Council of Juneau then adopted the hearing officer's findings of fact and conclusions of law and ordered that a deed be issued in conformity with his decision. Thereafter, appellee appealed to the superior court, where the hearing officer's findings of fact and conclusions of law were ordered set aside and the case was "remanded to the Hearing Officer of the City of Juneau for full hearing de novo." A second hearing was held and at its conclusion, the city of Juneau's hearing officer filed findings of fact and conclusions of law. This second hearing officer decided that appellee had established a class I preference right to lot 1, block 66, and further concluded that appellee's application for the disputed portion of lot 2, block 66 should be denied. By order of the City Council of Juneau, these findings of fact and conclusions of law were approved. Appellee then appealed to the superior court from the city council's order approving this second denial of appellee's application for a portion of the tidelands lying within lot 2, block 66 of the Tidelands Addition to the City of Juneau.
In State v. A.J. Industries, Inc., 397 P.2d 280, 281-82 (Alaska 1964) (footnotes omitted), we made reference to the fact that:
Alaska attained statehood on January 3, 1959. Section 6(m) of the Alaska Statehood Act provided that the Submerged Lands Act of 1953 should be applicable to Alaska, which meant that Alaska was given the same ownership of tidelands and lands beneath navigable waters as other states of the Union.
Under the provisions of the Alaska Land Act, AS 38.05.005- 38.05.370, and in particular AS 38.05.320(b), appellant city of Juneau acquired title to the tidelands in question. AS 38.05.320(b) (6) provided that:
Each home rule city and city of the first class receiving conveyances shall by ordinance provide for reasonable regulations governing the filing and processing of applications, publication of notices, and the adjudication of disputes between claimants by the governing body of the home rule cities and cities of the first class. A party aggrieved by its determination may appeal to the superior court.
Pursuant to this statutory authorization, the city of Juneau enacted into law, on August 30, 1962, Ordinance 471 pertaining in general to tidelands lying seaward of the city, which defined the respective preference rights of the occupants of the area, and established procedures by which such rights were to be perfected by applicants. Juneau, Alaska, Ordinance § 13-1-1 through § 13-2-20 (1963). Acting pursuant to this tidelands ordinance (in particular § 13-2-6 through § 13-2-8 thereof), appellee made application for a deed as a holder of a class I preference right.
Appellee made application for an area which had been previously designated as lot 1 and a portion of lot 2 of block 66 on the plat of the Tidelands Addition to the City of Juneau. Appellants only contested appellee's claim as it pertained to a portion of lot 2 of block 66. This contested area encompasses the upper portion of the sloping fill area. On the plat, the city of Juneau was listed as the owner of lot 2.
See AS 38.05.320(b) (6). Junea, Alaska, Ordinance § 13-2-14 (1963) provides for an initial processing of disputed claims by a hearing officer.
Thus, a deed to lot 1, block 66 of the Tidelands Addition to the City of Juneau was issued to appellee, but a deed was denied as to the disputed strip of lot 2, block 66.
AS 38.05.320(b) (6) provides that a party aggrieved by the governing body of the city in regard to an adjudication of a tideland dispute "may appeal to the superior court."
It appears from the record that the basis for the remand was the superior court's dissatisfaction with the hearing officer's findings of fact, conclusions of law, as well as with the content of the record of the evidence which was adduced at the hearing. At oral argument the trial judge stated in part:
[I]t may well be that a re-hearing could be more adequately presented, and the Hearing Officer could make a more comprehensive Findings of Fact upon which the parties could then proceed. * * *
* * * * *
* * * My thought was that the findings of the Hearing Officer are certainly limited, at best. He has two very brief findings and then based on those are two Conclusions of Law. * * *
* * * * *
* * * And that is why I thought perhaps it would be wise to have a more complete record below, with more judicious findings and conclusions as to what is specifically found from the evidence.
It appears that the superior court decided that a hearing de novo was required upon remand because at that time the city's original hearing officer was no longer with the city.
After the matter was again before the superior court, counsel entered into a stipulation in which they agreed and represented to the court
that all relative material necessary to a decision of the case as to the issues raised on appeal is included in the supplemented transcript as furnished to the court, and now join in moving that the court render a decision based upon such transcript. In support of this motion the parties submit that any record made on a trial de novo would not be more complete or helpful than the present transcript.
After hearing the matter on the record, the superior court entered an order reversing the hearing officr's decision and requiring the city of Juneau "to convey to plaintiff the Tidelands property prayed for in her complaint." Subsequent to the entry of this order, the superior court filed findings of fact and conclusions of law and entered judgment thereon. This appeal followed.
The superior court's judgment and decree of June 6, 1966, ordered appellants to convey to appellee the contested strip located in lot 2, block 66 of the Tidelands Addition to the City of Juneau; appellee was awarded costs and attorney's fees; and the findings of fact and conclusions of law entered by the hearing officer of the city of Juneau upon the de novo hearing were set aside in their entirety.
In regard to the allowance of preference rights in the acquisition of tidelands, AS 38.05.320(a) of the Alaska Land Act states that:
It is the policy of the state to allow preference rights for the acquisition of tidelands and submerged lands occupied or developed for municipal business, residential or other beneficial purposes on or before the date of admission of Alaska into the Union.
Under the Alaska Land Act, in order that an applicant be entitled to class I preference rights, the applicant must have been:
An occupant of land included in the conveyance to home rule cities and cities of the first class, who occupied or developed the land on and before September 7, 1957, has a class I preference right to the lands from the home rule cities and cities of the first class upon the execution of a waiver to the state and the home rule cities and cities of the first class of all rights the occupant may have acquired under Public Law 85-303 (71 Stat. 623).
AS 38.05.320(b) (2). In AS 38.05.320(d) (3) "preference right" is defined as follows:
[T]he right of an occupant to acquire, by lease, purchase, or otherwise, at the election of the occupant, except as otherwise limited or prescribed in this chapter, a tract of tideland, or tideland and submerged land continguous to tideland, occupied or developed by the occupant on and before January 3, 1959 * * *.
AS 38.05.320 (d) (5) of the Alaska Land Act defines "class I preference right" as
the right of an occupant to acquire tidelands and submerged lands for a consideration not exceeding the costs of surveying, transferring and conveying the title to it * * *.
Substantially the same general criteria for determination of class I preference rights are found both in the regulations promulgated by the Commissioner of Natural Resources, pursuant to the Alaska Land Act and in Juneau, Alaska, Ordinance § 13-1-3 (1963).
AS 38.05.020(b) (1) of the Alaska Land Act authorized the commissioner to establish reasonable rules and regulations necessary to carry out the purposes of the act. In his regulations the commissioner defined "preference right" and "class I preference right" in the following manner:
`Preference Right', subject to the classifications thereof established hereafter, means and includes the right of an occupant to acquire by grant, purchase, or otherwise, at the election of the occupant, except as otherwise limited or prescribed in this Act, any tract or tracts of tideland, or tideland and submerged land contiguous thereto, occupied or developed by such occupant on and prior to January 3, 1959.
11 Alaska Adm. Code § 120.218 (1962).
`Class I Preference Right.' A Class I preference right shall be extended to persons who occupied and developed tide and contiguous submerged lands seaward of a surveyed townsite on and prior to September 7, 1957 after executing a waiver to the State of all rights such occupant may have had pursuant to Public Law 85-303. If the occupied and developed land is seaward of a municipal corporation, a waiver must also be made to the corporation. Upon execution of the waiver, such persons or their successor in interest, have the right to acquire such occupied and developed tide and contiguous submerged lands from the State or the municipality for a consideration not in excess of the cost of survey, transferring and conveying title.
11 Alaska Adm. Code § 120.219 (1962).
The ordinance defines class I preference rights as the right extended to persons who occupied or developed tide or submerged lands seaward of a surveyed townsite on and prior to September 7, 1957 after executing a waiver to the City and State of all rights such occupant may have had pursuant to Public Law 85-303. Upon execution of the waiver, such persons or their successor in interest, have the right to acquire such occupied or developed tide or submerged lands from the City for consideration of the cost of survey, transferring and conveying of title.
AS 38.05.320(d) (1) of the Alaska Land Act defines "occupant" as
a person or his successor in interest, who actually occupied for business, residential or other beneficial purpose, tidelands, or tidelands and submerged lands contiguous to tidelands, in the state, on and before January 3, 1959, with substantial permanent improvements.
This same subsection further provides that no person is an occupant by reason of having
(A) placed a fish trap in position for operation or upon the tide or submerged land for storage, (B) placed a set net or piling for a set net, or any other device or facility for taking fish, (C) placed pilings or dolphins for log storage or other moorage, (D) placed floats or vessels upon the tide or submerged land, (E) placed telephone, power or other transmission facilities, roads, trails or other improvements not requiring exclusive use or possession of tide or submerged lands, or (F) claimed the land by virtue of some form of constructive occupancy; where land is occupied by a person other than the owner of the improvements on it, the owner of the improvements is, for the purposes of this section, the occupant of the lands * * *.
See Juneau, Alaska, Ordinance § 13-1-3 (1963) which defines "occupant." This subsection also states:
`Occupied or Developed' shall mean the actual use, control, and occupancy, but not necessarily residence, of the tide or submerged land by the establishment thereon of substantial permanent improvements.
11 Alaska Adm. Code § 120.213 (1962) contains an identical definition.
The regulations of the Commissioner of Natural Resources and the city ordinance both define "occupant" in precisely the same manner as does the Alaska Land Act.
See 11 Alaska Adm. Code § 120.212 (1962) and Juneau, Alaska, Ordinance § 13-1-3 (1963).
The Alaska Land Act, AS 38.05.320(d) (4) defines "occupied or developed" as
the use, occupancy and control of tidelands or submerged land by the establishment on it of substantial permanent improvements other than those uses, facilities and improvements not qualifying a person to be an occupant * * *.
The regulations of the Commissioner of Natural Resources define "occupied or developed" as
the actual use, control, and occupancy, but not necessarily residence, of the tide and contiguous submerged land by the establishment thereon of substantial permanent improvements.
11 Alaska Adm. Code § 120.213 (1962) and Juneau, Alaska, Ordinance § 13-1-3 (1963) contain definitions of "occupied or developed" which are identical to that of the foregoing regulations.
Also pertinent to the issues in this appeal are the commissioner's and the city's definitions of "improvements" since under the regulations and the ordinance an occupant must have established permanent improvements on the tidelands to become eligible for preferential rights. Under Juneau, Alaska, Ordinance § 13-1-3 (1962), the term "improvements" is defined as encompassing
11 Alaska Adm. Code § 120.214 (1962) defined "improvements" in the following manner:
`Improvements' shall mean buildings, wharfs, piers, dry docks, and other similar types of structures permanently fixed to the tide or contiguous submerged lands that were constructed and/or maintained by the applicant for business, commercial, recreation, residential, or other beneficial uses or purposes. In no event shall fill be considered a permanent improvement when placed on the tidelands solely for the purposes of disposing of waste or spoils. However, fill material actually utilized for beneficial purposes by the applicant shall be considered a permanent improvement.
Section 120.216 in turn states "`Substantial Permanent Improvement' shall for these regulations have the same meaning as improvements defined in section 120.214."
building, wharves, piers, dry docks, and other similar types of structures permanently fixed to the tide or contiguous submerged lands that were constructed and/or maintained by the applicant for business, commercial recreation, residential, or other beneficial uses or purposes. Floats secured by guide piles used as floating wharves, where access is provided to the shore, shall be improvements within the meaning of this section. Fill material to the extent actually in place above the line of mean high tide on January 3, 1959, and actually utilized for beneficial purposes on January 3, 1959 by the applicant shall be considered a permanent improvement, but in no event shall fill be considered a permanent improvement when placed on the tidelands solely for the purpose of disposing of waste or spoils. Fill material not utilized for a beneficial purpose on and prior to January 3, 1959 and fill material not actually in place to above the line of mean high tide on January 3, 1959, shall not be the basis for an application, nor shall it be included in any application, for the exercise of preference rights hereunder.
In Juneau, Alaska, Ordinance § 13-1-3 (1963), the term "fill" is defined as
earth, gravel, rock, sand, or other similar materials placed upon tide or contiguous submerged lands to a height above the high water line for the purpose of elevating the lands for a specific useful purpose. Earth, gravel, rock, sand, or other similar materials placed on tide or contiguous submerged land solely for the purpose of spoils disposal shall not be considered fill unless such fill was used for useful and beneficial purpose on and prior to January 3, 1959.
Under 11 Alaska Adm. Code § 120.215 (1962), "fill" is similarly defined. This regulation reads:
`Fill' shall mean earth, gravel, rock, sand, or other similar materials placed upon tide or contiguous submerged lands for the purpose of elevating the lands for a specific useful purpose. The placement of earth, gravel, rock, sand, or other similar materials on tide or contiguous submerged land solely for the purpose of spoils disposal and thereafter abandoned and not used for any beneficial purpose shall not be considered fill.
The crux of this appeal is whether appellee Marjorie Cropley was entitled to class I preference rights in regard to the disputed portion of lot 2, block 66.
See appendix for a sketch of the area in dispute.
The record discloses the following history of the area in dispute. In approximately 1943 the United States Army Corps of Engineers agreed with appellee's husband, Jake Cropley, to an exchange of tideland properties. Pursuant to this arrangement, the Corps of Engineers placed rock fill to the seaward side of Whittier Street and Willoughby Avenue. This fill was placed on the tidelands to a height above the line of mean high tide. Appellee produced evidence that the Corps of Engineers had agreed to place fill covering a total area of 85 feet by 85 feet over the subject tidelands. According to appellee's son, the actual dimensions of the fill, which was laid down by the Corps of Engineers, was approximately 70 feet by 75 feet. The level surface of the fill occupied practically the entire area of the tract now designated as lot 1. The slope of the fill constituted the remainder of lot 1, on the southeast and southwest sides, as well as the disputed portion of lot 2.
Jerry Cropley, appellee's son, also testified that when the fill was first placed upon the tidelands it made a "shallow bank" not more than "a few feet deep" and that gradually it sloughed off from people walking over it and boat traffic.
After the placement of the fill was completed by the Corps of Engineers, Jake Cropley moved warehouses on to it and made use of the fill from 1943 until his death in 1955. Subsequent to her husband's death, appellee succeeded to his interests in the fill, buildings thereon, and some of the personal property which was located on the fill. At this time appellee's two sons and Joe Paddock took over Jake Cropley's construction business, which consisted of construction of docks and other marine structures.
As to the use made of the sloping portions of the fill in question, the evidence which was produced before the second tidelands hearing officer disclosed the following: During the period from Jake Cropley's death in 1955 until the spring of 1959 this sloping area had been used for the storage of various items of equipment, such as a steam rig, skids, a skid rig, a small pile driver, creosote pilings, timbers, two small skiffs, and a 30-foot boat which had been owned by Jake Cropley. Jerry Cropley testified that "we" exercised control over these items. Joe Paddock, appellee's son-in-law, offered similar testimony.
As to the flat portion of the fill (designated as lot 1 for convenience), the record shows that after Jake Cropley's death his sons and Joe Paddock used it as a storage area for a pile driver, truck, timbers, and various pieces of machinery. During this period appellee rented the buildings on lot 1 to tenants.
Jerry Cropley testified that these items were of value when they were placed on the slope of the fill. On cross-examination this witness did characterize most of these items as "junk," but added that some of them were useful for purposes of cannibalization of their parts. Later in his testimony the witness alluded to the fact that he had a need for these things.
On the basis of this evidence the superior court found that "[s]uch uses made of the slope constituted a beneficial use thereof" and therefore concluded that appellee was an "occupant" of the slope, in accordance with the criteria of the tidelands ordinance. It is also of significance that the superior court further found that:
The rock on the slope of the fill was used as lateral support for that portion of the fill within the boundaries of Lot 1. Such lateral support was a beneficial use.
We hold that there is sufficient evidence in the record to support the superior court's findings of fact which pertain to the varied usage made of the two slopes of the fill within the boundaries of Lot until the spring of 1959. We also hold that the superior court's conclusion that appellee attained the status of an "occupant" entitling her to class I preference rights is correct in view of the beneficial uses which had been made of the particular portions of the sloping fill. We are of the further opinion that the mere fact that the sloping portions of the fill in question furnish support for the level section of the fill situated within lot 1 does not in and of itself constitute a beneficial use within the intendment of the previously mentioned provisions of the Alaska Land Act, the administrative regulations promulgated thereunder, and the pertinent sections of the Tidelands Ordinance of the city of Juneau.
State v. A.J. Industries, Inc., 397 P.2d 280, 286 (Alaska 1964), involved a claim by an occupant (developer) of tidelands which were not located seaward of a municipal corporation. In regard to determining whether certain use of rock fill constituted a permanent improvement under the state act and regulations, this court stated:
Appellant argues that the open storage of materials on the rock fill does not constitute use and occupancy of the area with the establishment of substantial permanent improvements.
The evidence was that appellee, in connection with its mining operations and its electrical distribution business, made a considerable use of portions of the area for the open storage of machinery and poles. Several of the lessees made a similar use of portions of the area for the open storage of materials and equipment related to their business activities.
The evidence of open storage does not establish the existence of a permanent improvement, but we agree with the Commissioner who found that it did establish a beneficial use, directly related to the business activities of appellee and its lessees, and to this extent accrued to the benefit of appellee in determining whether it was entitled to a preference right.
As we indicated at the outset, the expressed policy of the State of Alaska pertaining to tidelands, as stated in the Alaska Land Act, is one of allowance of preference rights for the acquisition of tidelands which were occupied for business or other beneficial purposes on or before Alaska's attainment of statehood. Under the provisions of the Alaska Land Act, home rule cities and cities of the first class receiving conveyances of tidelands were required to promulgate reasonable regulations governing the filing and processing of applications for tidelands and for the adjudication of disputes between claimants and the governing bodies of such cities.
Acting pursuant to the provisions of the Alaska Land Act, the city of Juneau undertook and completed a survey of the tidelands in 1960 and 1961 for the purpose of complying with the requirements of AS 38.05.320(b) (1). This section of the Alaska Land Act reads:
AS 38.05.320(b) (5) provides that in making a conveyance to an occupant qualifying for class I preference rights the home rule cities and cities of the first class shall
include as a part of the tract conveyed and in addition to the occupied or developed lands, such additional tide and submerged lands as are reasonably necessary in the opinion of the governing body of the home rule cities and cities of the first class for the occupant's use and enjoyment of the occupied or developed land, but the conveyance shall not include any area which would unjustly deprive an occupant of adjoining lands from reasonable use and enjoyment of those lands or which, if developed, will interfere with navigation.
See AS 38.05.320(c) (5) which employs the same phraseology.
Each home rule city and city of the first class granted a conveyance shall prepare an official subdivision plat of the area conveyed showing all structures and improvements and the boundaries of each tract occupied or developed, together with the name of the owner or claimant. The subdivisional plat shall include within the boundaries of each tract occupied or developed such surrounding tide and submerged lands as are reasonably necessary in the opinion of the governing body of the home rule cities and cities of the first class for the use and enjoyment of the structures and improvements by the owner or claimant, but shall not include tide or submerged lands which if granted to the occupant would unjustly deprive an occupant of adjoining lands from his reasonable use and enjoyment of them.
The city of Juneau did not give the civil engineering firm it had employed to survey and plat the tidelands area any specific instructions as to the method by which the dimensions of a given occupied or developed tract were to be determined. There was testimony pointing to the fact that in carrying out this survey the city's surveyors did not follow either the brow lines or the toe lines of filled areas. The boundaries of occupied or developed tracts were established in accordance to what the surveyors themselves believed to be a reasonable area necessary for the use of existing improvements. The Commissioner of Natural Resources of the State of Alaska testified that, in his experience, there were no specific state tidelands precedents which paralleled the factual situation presented by the case at bar. The commissioner also testified that the state did not allow the acquisition of slopes on tideland tracts excepting on the seaward side of such tracts.
By stipulation which the parties entered into on February 25, 1965, the following definitions of "brow" and "toe" were established:
The perimeter of the flat top portion of the fill at the point where it begins to slope downward to the mud flat is called the `brow' of the fill.
The lower edge of the fill where it intersects with the mud flats is called the `toe' of the fill.
The witness Charles Nordling further testified that in making the determination of what portion of a fill was actually being used, they located the physical improvements and also used the brows of the fills. This witness also testified that if the slope had actually been used it would have been included in the lot lines.
Commissioner Holdsworth explained that this was so because, usually, the fill had been located across more than one property owner's tidelands. The commissioner testified that:
[W]e will grant these preference tidelands with due regard for any right of an adjacent property owner to the tidelands fronting on his property. It is because of this that we have extended the side property lines in most cases, directly seaward and not allowed a preference right encroaching in front of some adjacent property.
In light of the foregoing, particularly the provisions of AS 38.05.320(b) (1) and AS 38.05.320(b) (5) of the Alaska Land Act, which reflect the State of Alaska's policy of permitting inclusion within the boundaries of occupied or developed tracts of such additional surrounding tide or submerged lands as are reasonably necessary for the occupant's use and enjoyment, we are of the opinion that the superior court was correct in according a liberal construction to the term "occupant" and to the requirement that "beneficial use" be made of fill material before such material qualifies as a "permanent improvement." In short, we hold that under the circumstances of this record appellee Marjorie Cropley's evidence demonstrated that sufficient beneficial use had been made of the sloping portions of the fill by her husband, their tenants, and relatives, so as to come within the various definitions of the term "permanent improvements." This, in turn, enabled appellee as an "occupant" to qualify for class I preference rights. Specifically, the evidence shows that the fill comprising the upper portions of the sloping areas was actually in place (above the high water line) and actually utilized for beneficial purposes. We consider the cases cited by appellant involving the necessity of exclusive control, and notorious possession as distinguishable because here we are concerned with particular statutory provisions which embody the applicable criteria for acquisitional rights.
See note 20 supra.
In State v. A.J. Industries, Inc., 397 P.2d 280, 285 (Alaska 1964) (footnote omitted), we said in part:
The beneficial uses made by the lessees accrued to the benefit of appellee in its application for a preference by reason of that portion of AS 38.05.320(d) (1) following (F) which provides that occupancy of the land by one other than the owner of the improvements is the occupancy of the owner.
Isler v. Jensen, 382 P.2d 901, 902 (Alaska 1963) (footnotes omitted), involved a boundary dispute between neighboring tracts of tidelands property occupied by the parties. Plaintiff brought an action for trespass and determination of boundary lines. In that case we said:
Since this is tideland property, which at the time this action arose was owned by the State of Alaska, plaintiffs' rights were to be determined by actual physical possession or occupancy. Plaintiffs have alleged facts sufficient to establish their possessory right to the property, since they have shown use and occupancy which was notorious and continuous and, by reason of the construction of the fence, have shown the extent of their occupancy and that it excluded possession by persons other than the plaintiffs.
On the other hand, upon consideration of the definition of "fill" and "permanent improvements" as set forth in the commissioner's regulations and the city's ordinance, we are of the opinion that the superior court erred in concluding that the function performed by sloping fill, i.e., supporting the level area of the fill, is in and of itself a "beneficial use" qualifying such fill as a permanent improvement. Nor do we agree with the superior court's conclusion that occupancy and beneficial use of the level portion of the fill automatically constituted occupancy and beneficial use of the sloping area in question. Analysis of the texts of the pertinent regulations of the Commissioner of Natural Resources and of the ordinance leads us to the conclusion that nonbeneficially used sloping fill, which only furnished lateral support, was not intended to be encompassed within the category of "permanent improvement." It is clear that it was intended that fill which was placed solely for the purposes of disposing of waste or spoils could not qualify as a permanent improvement. On the other hand, fill in place to a level above the line of mean high tide and actually utilized for beneficial purposes was intended to qualify as a permanent improvement. In our view, adoption of the lower court's lateral-support ruling would not only be contrary to the substance of the regulations and city ordinance, but would also be a potential source of conflict between adjacent tideland occupants or claimants. As we construe the applicable law here, the necessity of beneficial use being made of the fill is a dominant theme which has received repeated emphasis in the statute, regulations, and ordinance involved here. And as we indicated, we believe that a liberal construction of the ordinance and statute in favor of the applicant's asserted beneficial use of tidelands fill is appropriate.
See notes 13 and 14 supra.
This is apparently a question of first impression. At oral argument counsel conceded that they had been unable to find any precedent in regard to this precise issue. In their briefs counsel have not cited any cases or legislative history which have any bearing on the precise issue in dispute in this appeal.
The conclusion we have reached affirming the superior court's judgment that appellee is entitled to a class I preference right in regard to the sloping fill portion of the area in question, because of the beneficial use made of this area, reflects that we have resolved three other issues in this appeal adversely to appellants.
The first of these contentions is that the superior court erred when it set aside the initial hearing officer's findings of fact and conclusions of law and remanded the case for a full de novo hearing.
AS 22.10.020(a) of our Judiciary Title provides in part that:
The superior court has jurisdiction in all matters appealed to it from a subordinate court, or administrative agency when appeal is provided by law. * * * The hearings on appeal from a final order or judgment of a subordinate court or administrative agency shall be on the record unless the superior court, in its discretion, grants a trial de novo, in whole or in part.
AS 38.05.320(b) (6) of the Alaska Land Act provides that an aggrieved applicant has the right to appeal the city council's determination to the superior court. See note 1 supra.
Note: Review of the provisions of our Administrative Procedure Act, in particular AS 44.62.330(a), and the Alaska Land Act discloses that the Administrative Procedure Act was not made specifically applicable to the type of appeal which is involved in the case at bar.
The report of the initial tidelands hearing officer shows that only two findings of fact were made from which two conclusions of law were drawn. As we noted previously, the superior court decided to set aside these findings of fact and conclusions of law because it was of the opinion that they were inadequate. The basis for the superior court's determination that a full de novo hearing should be held upon remand was the fact that the tidelands hearing officer who initially heard the dispute between appellee and appellant city of Juneau no longer held the position of tidelands hearing officer.
The initial hearing officer's two findings were as follows:
(1) The land in dispute was filled to a height above the line of mean high tide on and before September 7, 1957.
(2) The land in dispute was not used for a beneficial purpose on and before September 7, 1957.
The two conclusions of law filed by the hearing officer read:
(1) That Mrs. Cropley did not sustain her burden of proving that she occupied and developed the land in dispute on and prior to September 7, 1957 so as to be entitled to a Class I Preference Right to that land, and
(2) That if a deed be issued to her it should include only that land described as Lot 1, Block 66 on the Tidelands Subdivision Plat.
In such circumstances we hold that the superior court did not err in setting aside the findings of fact and conclusions of law of the hearing officer and remanding the dispute for a de novo hearing. In regard to an appeal such as was involved in this case, the superior court possesses general appellate authority. This authority includes the power to affirm, modify, vacate, set aside, or reverse any judgment or decision of a tribunal or municipal body brought before it for review. This authority also includes the power to remand the case and direct the entry of an appropriate judgment or order, or to require such further proceedings be had as may be just under the circumstances. We, therefore, affirm the trial court's ruling in regard to the first hearing officer's decision. Looking to the findings of fact and conclusions of law which were entered, we cannot say that the superior court committed an abuse of discretion in remanding the matter for a full de novo hearing.
In Keiner v. City of Anchorage, 378 P.2d 406, 410 (Alaska 1963), this court said in part:
[I]f the agency record is not sufficient to determine the issue on appeal, or if the record discloses that justice requires evidence to be taken de novo, the superior court has the discretion to do what is necessary by granting a new trial or hearing, either in whole or in part.
It is also of significance that we have been furnished with only a partial excerpt of the record made at the initial hearing. Such an inadequate designation precludes intelligent review of the superior court's actions in remanding the case.
See Lee v. State, 374 P.2d 868, 870 (Alaska 1962).
Compare Rule 51(b), Rules of the Supreme Court of Alaska, which provides that:
The supreme court may affirm, modify, vacate, set aside or reverse any judgment, decree, decision or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree or order, or require such further proceedings to be had as may be just under the circumstances.
with District Court Civil Rule 19(c), which pertains to appeals from district court to the superior court. This rule reads:
Power of Disposition. Upon consideration of such appeal, the superior court may affirm, modify, vacate, set aside or reverse the judgment of the [district] court, and may remand the action and direct the entry of such appropriate judgment or order, or require further proceedings to be had, as may be just under the circumstances.See District Court Civil Rule 21(h), which deals with petitions for review to the superior court from orders of administrative agencies and district courts. This rule states:
Authority of Superior Court. Upon consideration of a petition for review, the superior court may affirm, modify, vacate, set aside or reverse any order or decision of a [district] court or administrative agency, and may remand the action or proceeding and direct the entry of such appropriate judgment or order, or require such further proceedings to be had as may be just under the circumstances.
See also AS 44.62.570(c) of the Administrative Procedure Act which provides:
The court may exercise its independent judgment on the evidence. If it is claimed that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by (1) the weight of the evidence, or (2) substantial evidence in the light of the whole record.
Appellant argues that AS 44.62.570(d) (1) of the Administrative Procedure Act embodies a general appellate rule that the power to remand depends upon a finding that
there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing.
In our view this section of the Administrative Procedure Act does not reflect the only circumstances under which a remand is proper. And, as we have already noted, the Administrative Procedure Act was not made applicable to appeals of the type we are concerned with here.
The same considerations have led us to conclude that the superior court did not commit error in setting aside the decision of the second tidelands hearing officer. When the matter came before the superior court for the second time, the superior court initially ordered another de novo hearing before the tidelands hearing officer. Thereafter, counsel entered into the stipulation, which we have heretofore set forth. Acting in accordance with this stipulation, the court reviewed the record of the second hearing, and then reversed the decision of the hearing officer and entered its own findings of fact, conclusions of law, and judgment. As we view the superior court's actions, they were tantamount to both a reversal of the second hearing officer's decision and a modification of her findings of fact and conclusions of law. We are of the further opinion that the superior court's ruling in this regard can be sustained in light of the inadequacy of the findings which were filed and the erroneous grounds upon which several of the conclusions of law were formulated. A further reason for our affirmance of the superior court's ruling is that the hearing officer's findings of fact and conclusions of law relating to appellee's use of the sloping fill lack an adequate basis in the record, whereas the findings of the superior court have substantial support in the record.
This was apparently motivated by the incomplete state of the transcript of the second hearing which was held before the tidelands hearing officer.
In this stipulation, counsel stated that they had
conferred regarding the incomplete and garbled portions of the transcript and have from memory, and in some instances by checking with the witnesses themselves, supplemented the transcript by insertion therein as to such portions of the record, and furnished the transcript, as so supplemented, to the court for a determination of the case on the merits * * *.
It appears that the second hearing officer was guided by the concept that proof of occupancy under the Alaska Land Act and the ordinance must meet the strict standard of "exclusive," "notorious," and "continuous" occupancy. Our interpretation of AS 38.05.320(d) (1) and (4) differs significantly from that of the hearing officer. The hearing officer also relied on United States v. 10.95 Acres of Land, 75 F. Supp. 841, 11 Alaska 518 (D.Alaska 1948 and Isler v. Jensen, 382 P.2d 901 (Alaska 1963). For reasons which we have heretofore set out, we do not find these authorities apposite.
As to scope of review, see Fischback Moore, Inc. v. Lynn, 407 P.2d 174, 177-178 (Alaska 1965), where the scope of review of the Alaska Workmen's Compensation Board's findings of fact was directed to whether the board's findings were supported by substantial evidence. Accord, State, Dep't of Highways v. Johns, Opinion No. 385, 422 P.2d 855, 860-61 (Alaska 1967).
Appellant's final contention is that appellee is barred by laches from obtaining affirmative relief against the city of Juneau. Under Ordinance 471, applications for tidelands could not be filed prior to November 15, 1962, or later than November 14, 1964. Appellee's application for the tidelands in question was filed on March 8, 1963. Prior to making her application, appellee had, in November of 1959, entered into a contract of sale with George Brothers Realty as to the fill area in question. George Brothers took possession of the area in July of 1960, and thereafter proceeded to clean the fill area, including the sloping portions thereof. In May of 1961, prior to the adoption of Ordinance 471 and prior to the time established for the filing of tideland applications, the city of Juneau leased, with other tidelands, the disputed portion of lot 2 to Capitol Builders for 55 years. In June of 1961 the city cleaned up the area preparatory to placing fill on the disputed portion of lot 2, block 66. The city's acting manager at this time requested permission from appellee to destroy her husband's 30-foot boat which was then located on the sloping portion of the fill. At that time appellee was informed that the city was preparing the area for permanent use. There was also evidence introduced that Mrs. Cropley observed fill being placed on the disputed area.
Juneau, Alaska, Ordinance § 13-2-5 (1963).
The contract designated, and application was made for, a fill 88 feet by 85 feet. It thus encompassed the whole of lot 1, block 66 and what is now the disputed portion of lot 2, block 66.
Appellant city of Juneau also relies on the fact that after the subdivisional plat was published neither appellee, nor anyone in her behalf, advised the city that she claimed more fill than was indicated on the plat. The city also argues that their lease to Capitol Builders was advertised and was not contested, nor did the city receive any complaints when lot 2 was being filled in. Appellants contend that approximately one month after June 1, 1961, Mrs. Cropley knew that the strip in question was being leased to another by the city.
On the other hand, Mrs. Cropley testified that she had never seen a plat or map of the area prior to the time she filed her application, nor was she aware of the fact that the city claimed a portion of the fill; that she left Juneau in October 1962 and did not return until February 1963. (Note: The second hearing officer disbelieved Mrs. Cropley on this point.) A reasonable inference from the record is that appellee did not learn of the lease to Capitol Builders until some time after her return in 1963. Tom George (appellee's vendee) testified that he first found out that the dimensions of the tract he had agreed to purchase were less than 85 feet by 88 feet when appellee made application for the tidelands. This witness also testified that he did not complain when fill material and subsequently two temporary buildings were placed upon the disputed area.
Our review of the record has convinced us that the superior court's conclusion that appellee Marjorie Cropley should not be barred by laches from asserting her claim against the city of Juneau should be affirmed. We believe that the superior court's findings of fact and conclusions of law in regard to the issue of laches are supported by substantive evidence.
Cf. Oswald v. Columbia Lumber Co., Opinion No. 399, 425 P.2d 240, 246-47 (Alaska 1967).
The findings of fact and conclusions of law of the superior court are modified to conform to the foregoing and as modified are, together with the judgment which was entered below, affirmed.