Alaska Supreme Court decides backyard dispute over a Montana Creek fence

Justices decide Montana Creek fence can remain

It started with a backyard fence and ended up in front of the Alaska Supreme Court.

 

In a decision issued Friday, the justices said a fence built by Chris and Ann Gilberto behind their home in the Montana Creek subdivision cannot be the subject of a judicial review. That means the final word rests with the head of Juneau’s Community Development Department, who said in 2013 that the fence is allowed.

“I was very happy with the decision,” said City Attorney Amy Mead, who argued on behalf of the city.

The decision ends four years of disputes between neighbors and the City and Borough of Juneau, and comes eight months after justices heard oral arguments during a Juneau hearing.

At that hearing, attorney Robert Spitzfaden represented Bill Yankee, who sought to have the fence removed.

“He was disgruntled that this fence existed and prohibited the walking of ducks from one property to another,” Spitzfaden said in February.

In 2013, soon after the fence was built, Yankee complained to the city and said the fence violated rules protecting a “no-build” greenbelt between the Montana Creek subdivision and the Nunatak Terrace subdivision, where Yankee lives. The rules for that greenbelt were established in 1994. Five years later, the CBJ’s community development department adopted a new policy.

That policy allows fences in “no-build” buffer zones as long as they are not built with heavy equipment. In this case, the Gilbertos’ fence was built with hand tools.

Yankee appealed the CDD’s decision to the planning commission, but it upheld the development director’s decision.

In a letter to the editor published by the Juneau Empire in February, Yankee said the crux of his case is that the city has gone back on rules originally established in the plat notes for the Montana Creek subdivision. He wrote in part, “it is my position that they have a duty to enforce their own restrictions, rather than running away from their duty.”

Yankee appealed again, this time to the CBJ Assembly, but the Assembly said it didn’t have the power to reconsider the decision.

Yankee appealed that decision by the Assembly to Juneau Superior Court, but Judge Louis Menendez found in 2015 that the superior court also didn’t have the power to overturn the CDD’s decision. Yankee appealed one final time, to the Alaska Supreme Court, and that decision was the one published Friday.

The court declined to review whether the process of appeal from the planning department to the Assembly was correct, but it did say that the “decision is of a type that is not ordinarily subject to further appellate review in the courts.”

Because the supreme court found itself unqualified to review the topic, the justices didn’t examine the topic further.


• Contact reporter James Brooks at james.k.brooks@juneauempire.com or call 523-2258.


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