Summary
The Supreme Court of Alaska affirmed the rejection of a municipal ballot initiative concerning the expiration and voter approval of borough land use, planning, and platting ordinances. The court held that the proposed measure was unenforceable as a matter of law because it bypassed mandatory planning commission procedures and improperly divested the borough assembly of land use authority delegated by state law. The court also affirmed an attorney's fee award, concluding that the claims involved statutory, rather than constitutional, initiative powers.
Topics
Practice areas
Questions Presented
- Whether the borough clerk properly rejected the proposed municipal initiative as unenforceable as a matter of law because it would bypass mandatory planning-commission procedures and divest the borough assembly of land-use authority delegated by state law.
- Whether Carmony was protected from an award of attorney's fees under AS 09.60.010(c)(2) as a public-interest litigant asserting constitutional claims.
Holdings
- The proposed initiative was unenforceable as a matter of law because it would bypass mandatory planning-commission review and effectively divest the borough assembly of land-use planning and regulatory powers delegated to it by state law.
- Carmony was not protected from the attorney's-fee award under AS 09.60.010(c)(2) because his claims concerned the statutory local initiative power, not constitutional rights.
Key quotations
“When we review an initiative prior to submission to the people, we are mindful that "the requirements of the constitutional and statutory provisions pertaining to the use of initiatives should be liberally construed so that `the people (are) permitted to vote and express their will on the proposed legislation.'"” (820)
“"The power to initiate cannot exceed the power to legislate."” (821)
“Because this case did not involve a constitutional claim, but rather concerned the statutory power of the local initiative, Carmony could not be protected by AS 09.60.010(c)(2) from an award of attorney's fees.” (824)
Factual background
Carmony and others proposed a borough initiative that would cause land-use planning, regulation, and platting ordinances adopted after July 1, 2007 to expire after the next borough election unless approved by the voters. The proposal would have imposed expiration dates on zoning ordinances, land-use regulations, platting regulations, and amendments to the comprehensive plan without mandatory planning-commission involvement. The borough clerk rejected the application as legally unenforceable, administrative rather than legislative, and improperly structured as a referendum.
Procedural history
Carmony and others submitted an application for a municipal initiative petition concerning borough land-use ordinances. The borough clerk rejected the application, and Carmony sought judicial review in superior court. The superior court granted the borough's motion for summary judgment, upheld the rejection, denied Carmony public-interest-litigant protection, and awarded $1,633.50 in attorney's fees. Carmony appealed both rulings.