Haines: Long-running tiff with municipality ends

Posted: Sunday, August 11, 2002

A former Haines resident's four-year legal battle with the City of Haines ended with a ruling in the municipality's favor in the Alaska Supreme Court.

Phyllis Ogar filed a lawsuit against the city in Superior Court in 1999, claiming the municipality acted improperly when it required her to remove a shed and fuel tank from the side of her garage that were encroaching on the city's right of way on Pyramid Drive, a spur of FAA Road.

Ogar, according to the opinion released by Supreme Court justices, was under the impression the land was hers.

The land's previous owners, Larry and Gloria Schmidt, successfully petitioned the city council to vacate the land in 1989. But the city never received payment for the land, nor did they get plats for the changes the owners were supposed to have made, meaning the vacation never actually occurred, court documents show.

The city planning commission issued a building permit for a garage on the property in 1990. The garage, according to plans submitted to the planning commission, was to sit on the landowner's property, not the right of way approved for vacation.

But the garage was built about 21 feet into the city's right of way, the opinion says. The city never inspected the building after its completion and, as a result, neither the municipality nor Ogar knew of the encroachment until after Ogar already had purchased the property.

The encroachment came to light in 1997, after Ogar had already owned the land three years. "A neighbor reported that Ogar was clearing wood from the right of way, and the city investigated," the justices wrote.

Ogar's attorney, Tony Strong, said that report was made by a neighbor whose commercial development in the area Ogar had previously opposed. Ogar was clearing brush from what she believed to be her property when city staff arrived to tell her to stop, Strong said.

"As far as she knew, she was working on her property. It was not a pleasant surprise," Strong said, noting that the property disclosure that came with Ogar's parcel listed no encroachments. While there, city workers noticed that Ogar's garage encroached on city land, city clerk Susan Johnston said.

To remedy the encroachment, Ogar in 1998 applied for a thirty-foot vacation from the city planning commission to accommodate the garage, built-on shed and fuel tank. The commission approved only a 15-foot vacation and a setback variance to accommodate the permanent garage structure, but required she remove the shed and fuel tank.

Ogar sued the city in Superior Court, claiming their demand that she remove the structure was contradictory to their previous tacit approval of its construction through the granting of a building permit.

But the Superior Court ruled that the city's failure to notice the mistake did not constitute approval. "We hold that the city made no assertions of position to Ogar or her predecessors." the justices wrote. "Ms. Ogar's claim that the city negligently failed to prevent or cure the encroachment fails."

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