Boroughs are statutorily authorized to provide and charge residents for garbage-collection services. The primary issue in this appeal is whether boroughs also have the implied or incidental authority to record
II. FACTS AND PROCEEDINGS
In 2007 Virgilio and Rosemarie Sabado hired Roger David to tear down a fire-damaged house on their property in Kodiak. In September David opened a commercial garbage account with the Kodiak Island Borough (Borough) and paid a deposit for placement of a construction dumpster near the property. David accrued about $5,000 in garbage-service charges. The Borough applied David's deposit to this amount and began sending him monthly bills for the balance. No payment was made and David's account became delinquent.
In October 2008 the Sabados sold the property to Cedric Cutler, who was unaware of David's garbage account with the Borough. In December the Borough sent David a letter advising him that a lien could be placed on the property if the account remained unpaid. No payment was made, and in January 2009 the Borough recorded a lien against the property. The Borough then sent lien-notice letters to David and the Sabados, who were still listed as the property owners in the Borough's tax files.
In February 2010 the Borough petitioned to foreclose outstanding tax and garbage-service liens for years 2009 and prior. Cutler learned of the foreclosure proceeding and filed an answer and counterclaim, asserting the lien against his property was invalid and seeking damages for wrongful recording of a nonconsensual common law (NCCL) lien.
In April the Borough released the lien and sought dismissal of Cutler's counterclaim. Cutler argued that the lien had been wrongfully recorded and dismissal was inappropriate. He also argued that the superior court should not enter default judgment with respect to the Borough's foreclosure of other garbage-service liens. Both parties moved for summary judgment on Cutler's counterclaim.
In June the superior court entered default judgment with respect to the other garbage-service liens. In December the court granted the Borough's summary judgment motion and denied Cutler's summary judgment motion, ruling that the Borough's lien was not a wrongful NCCL lien. The court did not address the Borough's alternative argument that even if the lien were a wrongful NCCL lien, the Borough was entitled to statutory immunity.
Cutler appeals the superior court's summary judgment ruling and default judgment entry with respect to the other garbage-service liens.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo, affirming "when there are no genuine issues of material fact, and the prevailing party ... was entitled to judgment as a matter of law."
A. The Lien
The Borough recorded the garbage lien under Kodiak Island Borough Code (KIBC) 08.25.065(E), which then provided that "[e]very charge to a person ... in connection with garbage collection ... constitutes a lien chargeable against the property and has a status the same as if the charge had been levied or assessed as a property tax."
Cutler argued the lien was an NCCL lien, statutorily defined as a lien that: "(A) is not provided for by a specific state or federal statute; (B) does not depend on the consent of the owner of the property affected for its existence; and (C) is not an equitable, constructive, or other lien imposed by a court recognized under state or federal law[.]"
To determine whether the lien was an NCCL lien, the superior court considered two issues: (1) whether the Borough ordinance was a state statute, its equivalent, or not a state statute at all; and (2) if it was a state statute or its equivalent, whether the ordinance was an authorized borough power. The court concluded the ordinance was the equivalent of a state statute because "all borough powers are state powers with which the state has entrusted the borough." The court also concluded the Borough had authority to enact and enforce KIBC 08.25.065(E) because state statutes give boroughs authority to provide garbage-collection services, set service rates, and assess penalties for violation of garbage ordinances.
2. Lack of authority for code provision
Cutler argues the Borough does not have authority to create liens to secure payment for garbage services. He notes that neither AS 29.35.050 nor AS 29.35.210, the statutes from which the Borough derives its garbage-service authority, "makes any mention of the authority to turn garbage collection charges into ... liens against the real property served." He also argues that authority to impose penalties does not include authority to record liens, especially liens having the same priority as property tax liens. The Borough responds that "when viewed within the liberal construction afforded grants of authority to boroughs, the statutes authorizing creation and enforcement of a garbage services system `necessarily or fairly imply' authority to penalize non-payment of accounts."
We recognize that the Borough's authority to pass ordinances is liberally construed,
We conclude that the Borough lacks authority to record nonconsensual property liens to secure payment for garbage-related charges. We do not believe that when the legislature authorized municipalities to "require property owners or occupants of premises to use the garbage ... system provided" and to fix charges for those services,
Our conclusion is supported by the fact that in another municipal service context, the legislature specifically granted municipalities authority to record property liens. The legislature expressly authorized municipalities to impose fees on residential property owners if the municipal police department goes to the property an excessive number of times, and to record property liens (without the same priority as property tax liens) to secure the fees.
Public policy dictates the same conclusion. In another context where a municipality recorded a lien without express statutory authority, we stated that "[p]ublic policy would be thwarted" if each municipality were allowed to develop a number of different lien systems and noted that "the determination of lien priorities would be unduly complicated."
We therefore conclude that the Borough did not have authority to implement its code provision. The authority to record property liens is neither incident
3. Lack of consent
Cutler further argues the lien is an NCCL lien because he did not consent to its existence.
The record does not support the Borough's claim that the Sabados authorized David to act as their agent when applying for the commercial garbage account, let alone to act as their agent in consenting to the imposition of a lien on their property. And even if the record could support that claim, David's promise to comply with garbage ordinances could not equate to consent to the application of an invalid lien ordinance. Thus, we conclude there was no consent to the lien.
Because the garbage lien was not provided for by state statute and there was no consent, the lien was an NCCL lien. We therefore reverse the superior court's summary judgment ruling to the contrary.
B. Borough Immunity
Alaska Statute 09.65.070(d)(2) immunizes a municipality from exercising or failing to exercise a discretionary function.
The Borough argued to the superior court that it had discretionary function immunity under AS 09.65.070(d)(2) from Cutler's damages claim. Because the superior court concluded the lien was not an NCCL lien, it did not address the Borough's immunity defense.
Cutler argues on appeal that the Borough is not entitled to immunity under AS 09.65.070(d)(2). He contends the Borough failed to satisfy our planning-operational test because it did not argue that the lien involved basic planning or policy formulation. Cutler also argues that even if the Borough's actions involved basic policy, immunity is not available because the lien violated clearly established law. The Borough responds that the garbage-lien provision is policy-level action to collect "valid debts." The Borough explains that it "has established guidelines as to the circumstances under which it chooses to exercise [its lien] authority" and argues that such "budgetary policy choices" are entitled to immunity.
We agree with the Borough that it is immune from damages in this case. The Borough enacted the garbage-lien provision as a means to collect unpaid garbage-service fees. Because this represented the balancing of competing elements of legislative policy, the Borough is entitled to immunity for passing this ordinance.
C. Claims Of Non-Appearing Parties
Cutler argues the superior court abused its discretion and erred when it entered default judgment against the other properties. He argues the court should not have entered default judgment while his challenge to the Borough's authority to assert those liens was before the court.
Adversity is the basic requirement for standing.
Based on the foregoing, we REMAND the case to the superior court to determine the prevailing party, if any, and to award attorney's fees, if appropriate.
FABE, Justice, not participating.