Following an administrative hearing, the City of Anchorage declared Keiner's building to be a fire and health hazard and a public nuisance and ordered it removed. On appeal to the superior court Keiner's request for a de novo hearing was refused, the case was heard on the record, and the city's determination was affirmed. On appeal to this court Keiner makes two main points: (1) that he was entitled to a trial de novo in the superior court; and (2) that the evidence produced at the administrative hearing did not justify removal of the building.
The Code of Ordinances of the City of Anchorage prohibits a person from maintaining any structure which is unsafe, or which is a menace to the health, morals, or
In accordance with the code provisions, Keiner's structure was inspected by the city building inspector. The inspector's report to the city manager, after stating his findings, recommended that the building be declared a public nuisance and be demolished. Reports from the fire department, city sanitarian, and State Department of Health substantiated the building inspector's findings and conclusions. Based upon these reports, the city manager made and had served on Keiner written findings and an order that the building be demolished. Keiner filed objections, and then a public hearing was held by the city council acting as a board of adjustment. Following the hearing, the board found that the building was a fire and health hazard and a public nuisance, and provided by ordinance for its removal.
When Keiner appealed to the superior court he requested that the matter be heard there de novo and that he be given a jury trial. These requests were not granted. The court reviewed the record of evidence and proceedings before the board, found the record to be complete and sufficient and free from reversible errors, and affirmed the board's decision.
Keiner claims that this procedure deprived him of a constitutional right. He takes the position that a decision that the building must be removed involved the exercise of judicial power; that he was therefore entitled to a judicial determination of the question of whether the building was in fact a public nuisance and a fire and health hazard; that this question could not be judicially determined merely by court review of the evidence and proceedings at the board hearing, but necessitated a de novo taking of evidence and making of findings of fact by the court; and that unless that is done, enforcement of the board's order for removal of the building will deprive him of his property without due process of law.
In support of that argument, Keiner invokes the "Ben Avon doctrine", established by the United States Supreme Court in 1920 in Ohio Valley Water Co. v. Ben Avon Borough.
If this doctrine still retains any force,
Conceivably Keiner would be entitled to a trial de novo, in whole or in part, if he had been denied the opportunity to present to the board of adjustment relevant and material evidence supporting his claim of confiscation.
Keiner contends that he is entitled to a trial de novo because the board proceedings did not provide him with the procedural safeguards which the due process clause assures. He claims that rules of evidence were not followed; that there was no determination as to what matters were competent or incompetent, relevant or irrelevant; that leading and suggestive questions were propounded to witnesses; that exhibits were not marked for identification nor marked as exhibits; and that all records, papers, files, pictures and reports, which were submitted by the city clerk to the superior court as the record on appeal, had never been subject to cross examination by Keiner.
Broad assertions and suggestions that various rules of evidence were not followed, without particularization or a showing of prejudice, is of no assistance to this court in determining whether there is any merit to Keiner's claims.
Keiner next argues that a statute gives him the right to a de novo appeal. He refers to Section 16-1-35, Twenty-fourth, A.C.L.A. 1949, [AS 29.10.213-243] which authorizes a city council to adopt building and zoning regulations and to provide for the condemnation of buildings which have become fire or health hazards or public nuisances. The council is constituted a board of adjustment to hear and decide appeals from administrative determinations, and detailed provisions are made for appeals from the board to the district court.
This provision does not govern the procedure in the state superior court. Legislative enactments subsequent to statehood, and a procedural rule adopted by this court after creation of the state judicial system, show an obvious intent that where appeals are taken from administrative agencies or magistrate courts there shall not be a trial de novo unless the superior court requires it.
Keiner contends that the term "administrative agency", as used in S.L.A. 1959, ch. 50, § 17(1) (a) [AS 22.10.020(a)]
Judged by that test, we conclude that the superior court was justified in sustaining the findings and decision of the board of adjustment. Keiner's building was a two-story, wood frame structure, approximately 30 years old. It was used as his residence and as a rooming house with 14 or 15 living units. A health sanitarian testified that the building had three toilet stools and two showers available for the use of from 14 to 20 persons; that the lighting and ventilalation in some of the bedrooms was inadequate; and that parts of the interior walls offered a harborage for insects and access for mice. The city's building inspector testified that the wood foundation for the building was rotten, and that if this condition were allowed to continue it would affect the doors, windows and plumbing; and that in his opinion the "main danger" consisted of the absence of a central heating system and the presence of individual oil stoves in each room or apartment. A captain of the fire department gave his opinion that from the standpoint of fire there was a serious danger to the occupants of the building. He stated that if a fire started, the building would burn rapidly because it was of wood frame construction, with interior finishing that was combustible, had a tar and tar paper roof, had combustible tar shingles on the outside, and had no fire stops in the attic; and because of the numerous individual oil-burning heaters located throughout the building. He said that the potential loss of life would be great because there were many occupants of the building, each apartment had only one exit, and the only means of escape from the second floor was down a narrow stairwell. It was also his opinion that if the rotten foundation should fail in any way it could affect the doors and means of escape from the building.
In the light of this evidence, and of the entire record, we cannot say that there was no substantial evidence from which the board could reasonably conclude that the building was a fire and health hazard and a public nuisance, and that public safety required abatement of this condition.
Keiner's final point, presented somewhat cursorily in his brief, is that if abatement is required, then destruction or removal of the building would not be authorized if the hazardous condition could be eliminated in some other manner. However, he does not suggest how this might be accomplished. In fact, while testifying before the board, he indicated quite clearly that he would be able to do nothing to remedy the situation for at least five years.
The building inspector testified that under the city building code, repairs of a type not in conformity with the strict code requirements may be made only to the extent that the cost of repairs does not exceed 50% of the depreciated value of the building. He said that as to Keiner's structure this limitation would be exceeded, because 50% of the depreciated value of the building was approximately $2,000; and the cost of necessary repairs, such as foundation work, and installation of bathrooms and a central heating system, would exceed $10,000.
The judgment is affirmed.
S.L.A. 1959, ch. 184, § 20(3) as amended by S.L.A. 1960, ch. 5, § 3 [AS 22.15.240 (c)] concerning appeals from the magistrate court states in part: "All appeals shall be on the record unless the superior court, in its discretion, shall grant a trial de novo, in whole or in part."
The Alaska Administrative Procedures Act provides with respect to appeals from decisions of state administrative agencies that "Superior Courts shall on appeal have the right to augment the agency record in whole or in part, even to the extent of holding a hearing de novo." S.L.A. 1959, ch. 143, art. VII, § 25(4) [AS 44.62.570(d)].
Civ.R. 107(a), relating to appeals from magistrate courts, states that "All appeals shall be on the record unless the superior court, in its discretion, shall grant a trial de novo, in whole or in part."
"After the hearing is concluded, the board of adjustment shall enter its findings in the matter and may provide by ordinance for the condemnation of any building which shall have been found to be a fire or health hazard or public nuisance and to order or cause the removal or demolition of such building; provided, however, that the owner shall be given at least thirty days after the hearing within which to remove the objectionable building or buildings before the city may proceed to do so. * * *
"In the event that the board determines that a dangerous condition, public nuisance, fire or health hazard exists which may be corrected or made safe without the necessity of demolition or removal of the building, the board shall allow alteration, repair or reconstruction of the building under such terms and conditions as the board may find proper."