Citizens seeking a public vote on a locally controversial plan to vacate part of Washington Street in Seward filed with the City of Seward clerk an application for a referendum petition. The clerk denied their application. Because there was no city council action to refer to the voters, the clerk did not err in denying the petition on the ground the vacation could not be challenged by referendum. We therefore affirm the superior court judgment that dismissed the citizens' complaint challenging the clerk's denial of their application.
The City of Seward, the National Park Service, and the U.S. Forest Service cooperated in planning construction of a proposed multi-agency facility in Seward known as the Mary Lowell Center. The proposed center would provide administrative offices and visitor services for the National Park Service and U.S. Forest Service and a conference facility for use by those agencies, the city, and the public. Because the building plans for the center called for vacating part of Washington Street, the National Park Service asked the city to vacate Washington Street between Fourth and Fifth Avenues.
The City of Seward Planning and Zoning Commission passed a resolution in October 2005 recommending that the Kenai Peninsula Borough (KPB) approve the vacation request. The KPB Planning Commission approved the vacation request on November 28, 2005, and forwarded the proposed vacation to the Seward City Council with notice that "[t]he City Council has 30 days from November 28, 2005 in which to veto the decision of the [KPB] Planning Commission. If no veto is received from the Council within the 30-day period, the decision of the Commission will stand."
On December 12, 2005, the Seward City Council considered Resolution 2005-132, which, had it passed, would have vetoed the KPB Planning Commission's November 28 decision. The veto resolution received one vote in favor and three votes against; three council members were absent. Eight days later the council voted on a motion to reconsider its December 12 vote. By a vote of three to three, the motion to reconsider failed.
In March 2006 an entity called "Washington's Army" sued the city and the city clerk in superior court; the complaint sought declaratory and injunctive relief to require the clerk to certify the application for the referendum petition. The complaint described Washington's Army as "an association of individuals who are residents of the City of Seward, and who oppose the proposed vacation of a portion of Washington Street in Seward, Alaska." The only members of Washington's Army the complaint identified were Debra Hafemeister, Bill Hearn, Marilee Koszewski, and Sharyl Seese.
The superior court denied the plaintiffs' request for a temporary restraining order or a preliminary injunction. The court reasoned that vacating a street is an appropriation of city assets and that, per the Alaska Constitution, referenda cannot be used to repeal appropriations of city assets.
Washington's Army then filed with this court an emergency motion for injunctive relief. We denied that motion, and on the same day the superior court entered final judgment for the defendants.
Washington's Army and Debra Hafemeister and the other individual plaintiffs appeal the superior court's denial of their request for declaratory and injunctive relief.
Appellant Hafemeister makes two main arguments on appeal. First, she argues that the superior court erroneously held that the city council consented to the vacation by operation of law. Second, she argues that the proposed referendum will be constitutional because a street vacation is not an appropriation. In addition to responding to Hafemeister's arguments, the city argues that Washington's Army as an entity lacks standing to sue.
These arguments raise questions of law subject to our independent review.
An entity must have corporate status or possess the right to sue in order to have standing.
The proposed referendum petition was potentially problematic for two main reasons. First, if there was no action by the Seward City Council, there was nothing for city voters to repeal. Second, if vacating the street was an appropriation, the referendum would be invalid because a referendum may not repeal an appropriation.
We address only the first reason because it is dispositive of the appeal. We therefore do not reach the issue of whether vacating Washington Street was an appropriation.
The citizens applied for the referendum petition for the stated purpose of asking Seward voters to repeal the December 12, 2005, vote of the Seward City Council "on Resolution 2005-132 which affirmed partial vacation of Washington Street by the Kenai Peninsula Borough Planning Commission."
Because the city council did not take action, nothing could be referred to the voters and the clerk did not err in denying the petition. We therefore AFFIRM the superior court judgment dismissing the citizens' complaint challenging the clerk's denial of the petition application.
BRYNER, JUSTICE, not participating.