Birnbaum et al v. Municipality of Anchorage et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALAN BIRNBAUM, et al.,
Plaintiffs,
v.
MUNICIPALITY 	OF 	ANCHORAGE,
et al.,
Defendants.
Case No. 3:22-cv-00007-SLG
ORDER RE MOTION TO DISMISS
Before the Court at Docket 14 is Defendants Municipality of Anchorage,
Board of Adjustment of the Municipality of Anchorage, and Platting Board of the
Municipality 	of 	Anchorage’s 	(Municipality’s) 	Motion 	to 	Dismiss 	for 	Lack 	of
Jurisdiction. Plaintiffs Alan Birnbaum and Ruth Dukoff responded in opposition at
Docket 16, to which the Municipality replied at Docket 19. Oral argument was held
on July 26, 2022.
BACKGROUND1
This case is about the development of the Spruce Terraces Subdivision,
which is intended to be built in the Hillside area of Anchorage. 	Plaintiffs are
1 These background facts are drawn from the allegations in Plaintiffs’ complaint, which the district
court must take as true for the purposes of the Municipality’s motion to dismiss. See Daniels-Hall
v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (“We accept as true all well-pleaded
allegations of material fact, and construe them in the light most favorable to the non-moving
party.”).
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individuals who reside near the proposed development.2 	Defendants are (1) the
Municipality of Anchorage; (2) the Platting Board, which has decision-making
authority over developments in Anchorage, such as Spruce Terraces Subdivision;
and (3) the Board of Adjustment, which decides appeals from the Platting Board.3
Plaintiffs’ primary complaint is that the development of the Spruce Terraces
Subdivision endangers their lives and property, and those of their neighbors, in the
event of a wildfire requiring their evacuation. 	Plaintiffs also contend that the
Platting Board and the Board of Adjustment are biased against the lives and
property of Anchorage residents and in favor of the largest developer of houses in
Alaska in a manner that violates the due process and equal protection clauses of
the Fourteenth Amendment of the United States Constitution.4
Plaintiffs 	are 	concerned 	about 	the 	wildfire 	risk 	associated 	with 	the
construction of the Spruce Terraces Subdivision because the development would
increase the number of people dependent on the sole access road serving their
community. 	Plaintiffs describe this road as “hazardous” because it is steep,
2 Docket 1 at 3 ¶ 5, 7–8 ¶¶ 21–23, 63 ¶¶ 213–14.
3 Docket 1 at 3 ¶¶ 6–8.
4 Docket 1 at 2 ¶ 1.
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narrow, sloped, and has hairpin turns.5 	In the event of a fire, or any other
emergency, residents could become trapped if the road became impassible and
evacuation were impossible.6 Emergencies could escalate if emergency vehicles
are unable to use the road.7 	Plaintiffs maintain that the Hillside area in particular
is at risk of loss of life and property from a wildfire because of the “surrounding
wilderness and the steep topography.”8 	A secondary access road to Plaintiffs’
community could be built on Mountain Air Drive, but the road has not received full
funding or approval for construction.9
Recognizing the threat to residents served by a single access road, the
Anchorage Municipal Assembly passed a law in November 2019 requiring that new
developments “where the number of dwelling units exceeds 30 shall be provided
with two separate and approved fire apparatus access roads.”10 	By comparison,
with the addition of the Spruce Terraces Subdivision, approximately 145 houses
will be dependent upon the same single access road, 27 of which will be houses
5 Docket 1 at 6 ¶ 16.
6 Docket 1 at 4–5 ¶ 11.
7 Docket 1 at 5 ¶ 13.
8 Docket 1 at 4 ¶ 10.
9 Docket 1 at 16–17 ¶ 54.
10 Docket 1 at 5 ¶ 13.
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in the new Spruce Terraces Subdivision.11 Plaintiffs allege that the approval of the
Spruce 	Terraces 	Subdivision 	violates 	this 	municipal 	law, 	in 	addition 	to
approximately 30 provisions of the Anchorage Municipal Code and associated
regulations.12
The proposed development of the Spruce Terraces Subdivision began in
May 2018 when the former owners of the property submitted applications to the
Platting Board for a preliminary plat to subdivide the property into 27 lots. 	The
Platting Board considered these applications in Case No. S12420.13 	The Traffic
Department objected to S12420 due to, among other things, concerns about the
addition of homes without a secondary access road.14 	The Fire Department
approved of S12420, subject to the inclusion of five conditions intended to address
the increased fire risk, including one condition prohibiting construction beyond 11
of the lots until a secondary access road on Mountain Air Drive was funded and
approved for construction.15 	The Platting Board approved S12420 subject to the
11 Docket 1 at 8 ¶ 23.
12 Docket 1 at 1; see generally Docket 1 at 64–73 ¶¶ 220–68 (Counts I through VII).
13 Docket 1 at 7–8 ¶ 21.
14 Docket 1 at 9–10 ¶¶ 26–28 (“[T]he Traffic Department ‘cannot support the addition of homes in
this area without construction of a secondary access being guaranteed.’”).
15 Docket 1 at 10 ¶¶ 30–32.
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Fire Department’s proposed conditions.16 	After the Platting Board approved
S12420, Spinell Homes, Inc., (Spinell) purchased the land. According to Plaintiffs,
Mission Hills, LLC (Mission), which is owned by Spinell, currently owns the land.17
In 	April 	2020, 	Anchorage 	voters 	approved 	a 	general 	obligation 	bond
proposition that provided less than 1% of the funding necessary to construct the
Mountain Air Drive connection.18 	In October 2020, Andre Spinelli, a real estate
developer 	who 	is 	the 	vice-president 	and 	partial 	owner 	of 	Spinell, 	filed 	an
application with the Platting Board seeking to amend S12420, Case No. S12599,
which is the subject of this lawsuit.19 Mr. Spinelli sought the elimination of the three
conditions including in S12420: (1) the prohibition of construction beyond 11
houses until a secondary access road is funded and approved for construction; (2)
the requirement that each dwelling have an automatic sprinkler system until the
secondary access road is funded and approved; and (3) the requirement that each
lot 	be 	developed 	using 	Firewise 	construction 	and 	landscaping 	techniques.20
Mr. Spinelli proposed that these conditions be substituted with a condition requiring
16 Docket 1 at 12 ¶¶ 39–40.
17 Docket 1 at 13 ¶¶ 42–43.
18 Docket at 16–17 ¶ 54.
19 Docket 1 at 13 ¶ 43.
20 Docket 1 at 14 ¶ 44.
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the construction of a private water system that would supply domestic household
water 	to 	the 	Spruce 	Terraces 	Subdivision 	and 	supply 	firefighting 	water 	in
accordance 	with 	the 	National 	Fire 	Protection 	Association 	standards.21 	He
explained that “the residents above Luna [the location of the proposed Spruce
Terraces Subdivision] would be better protected from fire by the proposed private
water system than by a secondary access road.”22
The Traffic Department objected to Mr. Spinelli’s proposal because “the
proposed private water system does not address concerns that there would be no
egress from the area above Luna if a major Hillside event impacted Sandpiper
Drive [the single access road.]”23 The Fire Department’s fire marshal, by contrast,
issued 	a 	memorandum 	stating 	that 	the 	department 	supported 	the 	Spinelli
proposal.24 Plaintiffs submitted written comments objecting to the Spinelli proposal
and presented oral comments at a hearing on the proposal.25 	Ultimately, the
Platting Board approved S12599, eliminating the three conditions requiring phased
construction, 	a 	sprinkler system, and 	Firewise 	construction and landscaping
21 Docket 1 at 18–19 ¶ 59, 24–25 ¶ 80.
22 Docket 1 at 18–19 ¶ 59.
23 Docket 1 at 19 ¶ 60.
24 Docket 1 at 20 ¶ 62.
25 Docket 1 at 23 ¶¶ 73, 75.
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imposed in S12410 and substituting the requirement that Mr. Spinelli construct a
private water system to supply the Spruce Terraces Subdivision with domestic
household water and firefighting water.26
In June 2021, Plaintiffs appealed the Platting Board’s decision with respect
to S12599 to the Board of Adjustment, contending that the decision violated 30
different municipal laws and Plaintiffs’ due process and equal protection rights
under the United States and Alaska Constitutions.27 In December 2021, the Board
of Adjustment affirmed the Platting Board’s decision, explaining that the record
supported the Platting Board’s findings.28 	The Board of Adjustment decided that
it lacked jurisdiction to consider many of Plaintiffs’ arguments and that Plaintiffs
had waived their rights to make numerous claims, including their due process and
equal protection claims.29 The Board of Adjustment concluded that “the public may
have some legitimate concerns about the process as it occurred in this case and
the outcome, although not sufficiently addressed by or perhaps protected in the
current Code, or justiciable by us for the reasons stated herein” and recommended
26 Docket 1 at 24–25 ¶ 80.
27 Docket 1 at 38 ¶ 122.
28 Docket 1 at 40 ¶ 130.
29 Docket 1 at 40 ¶¶ 131–32.
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that “policy-makers seriously consider the concerns and how best to address those
concerns, perhaps through future code changes.”30
Plaintiffs initiated this action in January 2022 to challenge approval of
S12599.31 	Counts I through VII allege violations of municipal law, Count VIII
alleges a violation of the Due Process Clause of the Fourteenth Amendment of the
United States Constitution, and Count IX alleges a violation of the Equal Protection
Clause 	of 	the 	Fourteenth 	Amendment 	of 	the 	United 	States 	Constitution.32
Defendants filed a motion to dismiss pursuant to both Federal Rules of Civil
Procedure Rule 12(b)(1) and Rule 12(b)(6), which is now before the Court for
determination.33
LEGAL STANDARDS
I. 	Rule 12(b)(1)
The Municipality seeks to dismiss the municipal law claims, Claims I through
VII, alleging this Court lacks subject-matter jurisdiction to adjudicate them. Federal
30 Docket 1 at 41–42 ¶ 134.
31 Docket 1 at 77.
32 See generally Docket 1 at 64–73 ¶¶ 220–68 (Counts I through VII); Docket 1 at 73–76 ¶¶ 269–
91 (Counts VIII through IX).
33 Docket 14 (Defs.’ Mot. to Dismiss).
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Rule of Civil Procedure 12(b)(1) authorizes a party to seek the dismissal of an
action for lack of subject-matter jurisdiction.34 	Plaintiffs bear the burden of
demonstrating that the Court has subject-matter jurisdiction over their claims.35
II. 	Rule 12(b)(6)
The Municipality moves to dismiss Plaintiffs’ federal claims, Claims VIII and
IX, under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’”36
DISCUSSION
I. 	Supplemental Jurisdiction Over the Municipal Law Claims
For purposes of this Rule 12(b)(1) analysis, the Court will assume that it has
federal question jurisdiction over Claims VIII and IX in accordance with 28 U.S.C.
§§ 1331 and 1343 because these claims are brought pursuant to 42 U.S.C. § 1983
for the alleged violations of Plaintiffs’ Fourteenth Amendment rights. While original
34 A district court has jurisdiction to determine whether it has subject-matter jurisdiction. See Wells
Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n.24 (9th Cir. 1977).
35 See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
36 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
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jurisdiction may exist over Plaintiffs’ Claims VIII and IX under 42 U.S.C. § 1983—
a federal statute—original jurisdiction is lacking over Plaintiffs’ municipal law claims
because the claims arise under municipal law and the parties do not appear to
have diverse citizenship.37
The only potential basis for this Court’s jurisdiction over Plaintiffs’ municipal
law claims is the supplemental jurisdiction statute, 28 U.S.C. § 1367(a). Pursuant
to 28 U.S.C. § 1367(a), “in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article III of the United
States Constitution.” 	Under 28 U.S.C. § 1367(a), municipal law claims “form part
of the same case or controversy” as a federal claim when they derive from a
“common nucleus of operative fact” and “would ordinarily be expected to be
resolved in one judicial proceeding.”38
Even if supplemental jurisdiction exists, district courts have discretion to
decline to exercise supplemental jurisdiction if (1) the supplemental claim “raises
37 Docket 1 at 3 ¶¶ 5–8; 64–73 ¶¶ 269–91 (Compl.).
38 Arroyo v. Rosas, 19 F.4th 1202, 1210 (9th Cir. 2021) (determining whether the court had
supplemental jurisdiction over a state law claim) (quoting Tr. of the Constr. Indus. & Laborers
Health & Welfare Tr. v. Desert Valley Landscape & Maint., Inc., 333 F.3d 923, 925 (9th Cir. 2003)).
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a novel or complex issue of State law”; (2) the supplemental claim “substantially
predominates” over the claim over which the court has original jurisdiction; (3) the
court “has dismissed all claims over which it has original jurisdiction”; or (4) “in
exceptional 	circumstances, 	there 	are 	other 	compelling 	reasons 	for 	declining
jurisdiction.”39 	This 	analysis 	should be 	guided 	by “the 	values of economy,
convenience, fairness, and comity.”40
Plaintiffs explain that their municipal claims are so related to Plaintiffs’
federal constitutional claims such that all of Plaintiffs’ claims form part of the same
case or controversy under Article III of the United States Constitution.41 	The
Municipality contends that this Court should dismiss Counts I through VII pursuant
to Rule 12(b)(1), either for lack of jurisdiction or because this Court declines to
exercise its supplemental jurisdiction.42
In City of Chicago v. International College of Surgeons, the Supreme Court
addressed the question that is at the heart of this issue: whether a federal district
court may exercise supplemental jurisdiction when a party is seeking review of a
39 28 U.S.C. § 1367(c).
40 Abrams v. Blackburne & Sons Realty Cap. Corp., No. 2:19-CV06947-CAS(ASx), 2020 WL
509394, at *3 (C.D. Cal. Jan. 31, 2020).
41 Docket 1 at 2–3 ¶¶ 2–3.
42 Docket 14 at 9–15.
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state administrative agency determination when the plaintiffs have alleged both
federal constitutional and state administrative challenges to the agency action.43
The plaintiffs in that case sought permits to construct condominiums from the
Chicago 	Landmarks 	Commission, 	but 	the 	Commission 	denied 	their 	permit
applications. 	The plaintiffs sought judicial review before the Illinois state courts
pursuant to the Illinois Administrative Review Law, alleging federal constitutional
claims and violations of state law. 	The defendants removed the case to federal
court, where the district court granted summary judgment in their favor. 	The
Seventh Circuit reversed and directed the district court to remand the case to state
court, holding that the federal courts did not have jurisdiction.44
The Supreme Court reversed the Seventh Circuit, holding that federal courts
have supplemental jurisdiction to review state administrative challenges, provided
that the state and federal claims are part of the same case or controversy.45 The
Supreme Court explained that “[t]here is nothing in the text of § 1367(a) that
indicates an exception to supplemental jurisdiction for claims that require on-the-
record review of a state or local administrative determination. Instead, the statute
43 522 U.S. 156, 159 (1997).
44 Id. at 159–61.
45 Id. at 165.
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generally confers supplemental jurisdiction . . . without reference to the nature of
review.”46
In this case, if the Court has original jurisdiction over Plaintiffs’ federal claims
pursuant to 28 U.S.C. § 1331, then in accordance with City of Chicago, the Court
has supplemental jurisdiction over Counts I through VII if the municipal and federal
law claims “derive from a common nucleus of operative facts” such that the claims
are all part of the same case or controversy.47 Here, the municipal law claims and
the federal claims share a common nucleus of operative facts: They all arise out
of the approval of S12599 by both the Platting Board and the Board of Adjustment.
The Municipality points out that Anchorage Municipal Code 21.03.050D.3
accords to Plaintiffs the right to appeal the final decision of the Board of Adjustment
to the Superior Court of the State Court. 	The Municipality accordingly maintains
that Plaintiffs’ “tactical decision to forego a state-court appeal of their municipal law
claims 	deprives 	this 	Court 	of 	supplemental 	jurisdiction 	over 	them.”48 	The
Municipality relies on Misischia v. Pirie.49 The plaintiff in Misischia had thrice failed
46 Id. at 169.
47 Id. at 165 (quoting Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)).
48 Docket 14 at 12.
49 60 F.3d 626, 627–28 (9th Cir. 1995).
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the 	examination 	to 	practice 	as 	a 	dentist 	in 	Hawaii.50 	Pursuant 	to 	Hawaii
Administrative Rules, the plaintiff sought review before the Dental Board, but the
Dental Board refused to change his grade to a pass.51 Much like in this case, the
plaintiff in Misischia could have appealed the Dental Board’s determination to the
Hawaii state court.52 Instead, the plaintiff in Misischia elected to file suit in federal
court, alleging that he was deprived of his federal due process rights because the
Dental 	Board 	had 	violated 	the 	state 	regulations 	governing 	dental 	board
procedures. 	The Ninth Circuit’s primary holding was that the district court had
properly granted summary judgment to the defendants based on res judicata,
reasoning that the claims he brought in federal court were precluded by the final,
unappealed state administrative decision.53
The Municipality contends that the Circuit in Misischia also rejected the
plaintiff’s alternative argument that the federal district court should have exercised
50 Id. at 627.
51 Id. at 627–28.
52 Compare Haw. Rev. Stat. § 19-14(a), (b) (“Any person aggrieved by a final decision and order
in a contested case . . . is entitled to judicial review . . . . [P]roceedings for review shall be instituted
in the circuit court within thirty days after . . . service of the certified copy of the final decision and
order of the agency[.]) with Anchorage Municipal Code 21.03.050D.3 and .5 (“[A] person jointly or
severally aggrieved may appeal to the superior court . . . . [a] final decision of the board of
adjustment on an appeal from the platting board regarding an application for a subdivision[.]).
53 60 F.3d at 628–30.
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supplemental jurisdiction to “perform[] the same judicial review of the Board
decision which the Hawaii Circuit Court would under the Hawaii statute.”54 	In a
closing paragraph of the decision, the Circuit explained that “[a] litigant cannot use
supplemental jurisdiction to have a federal judge instead of a state judge perform
the judicial review of a state administrative agency decision which the state statute
assigns to a state court.”55 But this discussion of supplemental jurisdiction was not
determinative 	to 	the 	outcome, 	given 	that 	only 	federal 	§ 1983 	claims 	were
presented in Misischia.56
The Ninth Circuit’s decision in Misischia is distinguishable from the case at
hand for several reasons. First and most importantly, in Misischia, the plaintiff did
not file any supplemental claims alleging violations of state law, filing instead a
§ 1983 action against the Board members in federal court.57 	In City of Chicago,
by contrast, the plaintiffs sought relief under the Illinois Constitution as well as
54 Id. at 630–31; Docket 14 at 12–13.
55 60 F.3d at 631 (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984),
and Han v. U.S. Dep’t of Just., 45 F.3d 333, 339 (9th Cir. 1995)).
56 See Dictum, Black’s Law Dictionary (11th ed. 2019) (defining “judicial dictum” as “[a]n opinion
by a court on a question that is directly involved, briefed, and argued by counsel, and even passed
on by the court, but that is not essential to the decision and therefore not binding even if it may
later be accorded some weight”). The statements made in Misischia regarding supplemental
jurisdiction would be characterized as dicta because it appears that the plaintiffs did not file any
state claims requiring the court to reach that question.
57 60 F.3d at 628.
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administrative review of the state commission’s decisions, in addition to their
federal constitutional claims.58 	Notably, the instant case is more like City of
Chicago because Plaintiffs seek judicial review of both municipal and federal
claims before this Court.59 	Second, the supplemental jurisdiction discussion in
Misischia 	predates 	the 	Supreme 	Court’s 	holding 	that 	federal 	courts 	have
supplemental jurisdiction to review local administrative determinations, even if a
state 	statute 	provides 	for 	judicial 	review 	of 	these 	local 	administrative
determinations 	in 	state 	court.60 	Accordingly, 	the 	Court 	has 	supplemental
jurisdiction over the municipal claims raised in Counts I through Counts VII.
Alternatively, the Municipality contends that even if there is supplemental
jurisdiction over the municipal claims, the Court should decline to exercise it.61
Indeed, in City of Chicago, the Supreme Court cautioned that “to say that the terms
of § 1367(a) authorize the district courts to exercise supplemental jurisdiction over
58 522 U.S. at 160.
59 See generally Docket 1 at 64–73 ¶¶ 220–68 (Counts I through VII); Docket 1 at 73–76 ¶¶ 269–
91 (Counts VIII through IX).
60 City of Chi., 522 U.S. at 159, 164–65. However, the Ninth Circuit recently cited to Misischia, as
follows: “When judicial review of an agency decision is available, plaintiffs need appeal only claims
that they are required to appeal to state court, such as the state APA claim here.” Spirit of Aloha
Temple v. Cnty. of Maui, ___ F.4th ___, Nos. 19-169389, 20-15871, 2022 WL 4374632, at *11 (9th
Cir. Sept. 22, 2022) (citing Misischia, 60 F.3d at 631).
61 Docket 14 at 13–15.
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state law claims for on-the-record review of administrative decisions does not
mean that the jurisdiction must be exercised in all cases.”62 	The Supreme Court
recognized that “there may be situations in which a district court should abstain
from 	reviewing 	local 	administrative 	determinations 	even 	if 	the 	jurisdictional
prerequisites are otherwise satisfied.”63
The Municipality urges this Court to follow the U.S. District Court for the
District of Hawaii’s decision in Spirit of Aloha Temple v. County of Maui, a case in
which the district court heeded the Supreme Court’s observation in City of Chicago
and 	declined 	to 	exercise 	supplemental 	jurisdiction 	over 	local 	administrative
determinations involving land use planning.64 	The plaintiffs in that case had
applied for a special use permit for a church and a church-operated bed and
breakfast establishment, but the County of Maui Planning Commission denied the
permit.65 	Much like in this case, the plaintiffs could have sought review of the
Planning Commission’s decision in the Hawaii state courts.66 Instead, the plaintiffs
sued the County in federal court, alleging violations of Hawaii state law and federal
62 522 U.S. at 172 (emphasis in original).
63 Id. at 174.
64 No. 14-00535, 2016 WL 347298 at *3 (D. Haw. Jan. 27, 2016).
65 Id. at *1.
66 Haw. Rev. Stat. § 91-14.
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law.67 	The district court declined to exercise supplemental jurisdiction over the
plaintiffs’ state claims and stayed the remaining federal claims pending the state
court’s determination of the state claims.68
The 	district 	court 	explained 	that 	it 	had 	supplemental 	jurisdiction 	in
accordance with City of Chicago over the claim seeking review of the Planning
Commission’s decision pursuant to Hawaii law.69 	However, the court declined to
exercise its jurisdiction. The court observed that “[t]his [wa]s not the typical appeal”
because the plaintiffs sought “a special use permit in a special management area
for a religious use” and the relevant state law was “clearly complex.”70 Moreover,
the court found that the state law claims substantially predominated over the claims
over which the district court had original jurisdiction. The court explained that “[t]his
court, in fact, is unable to discern from Plaintiffs’ Complaint any theory of liability
with regard to the federal claims that does not rely on the [State’s administrative
decision.]”71
67 Spirit of Aloha Temple, 2016 WL 347298 at *1.
68 Id. at *14.
69 Id. at *3–4.
70 Id. at *5.
71 Id. at *8.
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In light of the district court’s decision declining to exercise supplemental
jurisdiction, the plaintiffs went to state court to challenge the denial of the permit
under state law, but reserved for federal adjudication all of their federal claims.
The state court affirmed the Commission’s denial of the permit. 	After the state
court reached a final decision, the plaintiffs returned to federal court to adjudicate
their federal claims.72 	The district court then granted summary judgment for the
County, on certain federal claims, concluding that the Commission’s findings
barred the plaintiffs’ federal claims under collateral estoppel because the state
circuit court had affirmed the Commission’s factual findings and conclusions of
law.73
The Ninth Circuit reversed, holding that the plaintiffs’ federal claims were not
collaterally 	estopped 	because 	the 	plaintiffs 	had 	not 	received 	a 	full 	and 	fair
adjudication of the federal questions before the state commission or the state
court.74 The Circuit cited to Misischia for the following proposition: “[w]hen judicial
72 Spirit of Aloha Temple v. Cnty. of Maui, 409 F. Supp. 3d 889, 895, 898–900 (D. Haw. 2019).
73 Id. at 900–01, 905, 910–12.
74 Spirit of Aloha Temple v. Cnty. of Maui, ___ F.4th ___, Nos. 19-169389, 20-15871, 2022 WL
4374632, at *10–13 (9th Cir. Sept. 22, 2022). In addition to reversing the grant of summary
judgment with respect to collateral estoppel, the Ninth Circuit also held that the plaintiffs had
“raised sufficient evidence that the zoning regulations are facially unconstitutional” because they
violate the First Amendment. Id. at *5–10.
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review of an agency decision is available, plaintiffs need appeal only claims that
they are required to appeal to state court,” and not their federal claims.75
The Municipality in this case maintains that, of the four reasons identified in
the statute when a district court may decline to exercise supplemental jurisdiction
under Section 1367(c), two are applicable in this case: (1) the nonfederal claims
raise 	novel 	or 	complex 	issues 	of 	state 	law; 	and 	(2) 	the 	nonfederal 	claims
substantially predominate over the claims over which the Court has original
jurisdiction.
As to the first reason, the Municipality contends that many of Plaintiffs’
municipal law arguments are novel arguments under local and Alaska law.76
Plaintiffs disagree with the Municipality’s characterization of the municipal law
claims as novel, explaining that “the municipal law issues are not new and
noteworthy with the possible exception of the conflicts of interest violations that
coincide with the constitutional violations.”77
The Alaska 	Supreme Court, however, 	has not considered 	any 	of the
sections of the Anchorage Municipal Code or the Anchorage Municipal Code of
75 Id. at * 11 (citing Misischia, 60 F.3d at 631).
76 Docket 14 at 13.
77 Docket 16 at 24.
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Regulations that Plaintiffs allege have been violated in this case. 	Accordingly,
there is not any case law to guide the Court’s analysis. Just like in Spirit of Aloha
Temple, resolution of Counts I through VII would require the Court “to engage in a
complex analysis of statutes, ordinances, and rules as applied to the facts of this
case, 	not 	to 	mention 	the 	policy 	objectives 	influencing 	every 	level 	of 	state
government.”78
Moreover, several of the municipal laws require a complex balancing of
multiple factors that are highly factual and require consideration of competing local
land use policies. 	For example, Plaintiffs contend that the Municipality violated
Anchorage Municipal Code 21.03.240, which provides that in order to grant a
variance, the platting authority must consider if:
a. There 	are 	special 	circumstances 	or 	conditions 	affecting 	the
property such that the strict application of the provisions of the
subdivision 	regulations 	would 	clearly 	be 	impractical,
unreasonable, or undesirable to the general public;
b. The granting of the specific variance will not be detrimental to the
public welfare or injurious to other property in the area in which
such property is situated;
c. 	Such variance will not have the effect of nullifying the intent and
purpose of the subdivision regulations or the comprehensive plan
of the municipality; and
d. Undue hardship would result from strict compliance with specific
provisions or requirements of the subdivision regulations.79
78 Spirit of Aloha Temple, 2016 WL 347298 at *7.
79 Anchorage Municipal Code 21.03.240(G)(3).
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This one provision of the Anchorage Municipal Code alone would require this Court
to wade into the thicket of local land use policies. 	Resolution of Counts I through
VII would require this Court to engage in a complex analysis of 30 provisions of
Anchorage Municipal Code and its associated regulations, in addition to the policy
objectives underlying these provisions. 	As in Spirit of Aloha, these “novel and
complex issues” of municipal law are better resolved, in the first instance, by the
state courts.80
As to the second reason, the Municipality maintains that “[e]ven a cursory
review of the Birnbaums’ complaint illustrates that the local law claims are, by far,
the primary focus of the lawsuit.”81 	Indeed, seven of the nine counts sound
exclusively in municipal law, alleging violations of 30 different local ordinances and
regulations.82 	And the majority of the complaint and Plaintiffs’ opposition to the
motion to dismiss discuss in great detail the alleged substantive and procedural
violations of municipal law.83
80 Spirit of Aloha Temple, 2016 WL 347298 at *7.
81 Docket 14 at 13.
82 Docket 1 at 64-73 ¶¶ 220-68.
83 Docket 1 at 2 ¶ 3, 8-50 ¶¶ 24-166, 64-73 ¶¶ 220-68; Docket 16 at 3-5, 7-18.
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Plaintiffs rely on United Mine Worker v. Gibbs84 to contend that the municipal
law violations do not substantially predominate, quoting the Supreme Court as
explaining “that ‘substantially predominates’ means ‘in terms of proof, of the scope
of the issues raised, or of the comprehensiveness of the remedy sought[.]’”85
Plaintiffs maintain that the federal claims predominate because the federal and
municipal claims rely on the same proof—"the administrative record and evidence
subject to judicial notice”—and because the claims seek the same remedy—
“invalidation of the approval of S12599.”86
Plaintiffs omitted several key parts of the quote from the Supreme Court,
however, which states in full “if it appears that the state issues substantially
predominate, whether in terms of proof, of the scope of the issues raised, or of the
comprehensiveness of the remedy sought, the state claims may be dismissed
without prejudice and left for resolution to state tribunals.”87 	And in this case, the
proof is a matter of municipal law: the administrative record from the proceedings
before the Municipality. 	The scope of the issues raised is almost exclusively
municipal. 	Indeed, Plaintiffs’ theories of liability with respect to the federal claims
84 383 U.S. 715, 726 (1966).
85 Docket 16 at 24.
86 Docket 16 at 24–25.
87 383 U.S. at 726–27 (emphasis added).
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all rely on the Municipality’s decision to approve S12599. 	Finally, the remedy
sought is the invalidation of the municipal action. 	All three of the Gibbs factors
show that the issues of municipal law substantially predominate in this case.
In this respect, this case is remarkably similar to Spirit of Aloha Temple. Just
as in that case, here the Court “is unable to discern from Plaintiffs’ Complaint any
theory of liability with regard to the federal claims that does not rely on the [state
administrative action.]”88 In both cases, “the court would likely address the merits
of the administrative appeal before addressing the merits of the federal claims,”
and if the Court were to affirm the agency’s decision, “it is hard to see how Plaintiffs
could succeed on their federal claims.”89 	In regards to the remedy sought, the
Plaintiffs “primarily seek to invalidate the [state administrative action.]” And “even
in terms of proof, the administrative appeal predominates, both because the
federal claims turn on the administrative record, and because [the state claims]
would likely require the most extensive review of the administrative record.”90 It is
clear that the municipal law claims substantially predominate in this case.
88 Spirit of Aloha Temple, 2016 WL 347298 at *8.
89 Id.
90 Id.
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The additional considerations of fairness, convenience, and comity all
suggest that this Court should decline to exercise supplemental jurisdiction over
Counts I through VII.91 	Fairness and convenience do not tip the balance in favor
of retaining jurisdiction. 	Presumably, Plaintiffs can pursue their administrative
appeal in state court because the deadline to file in the state court has been tolled
in accordance with 28 U.S.C. § 1367(d) while Counts I through VII are pending in
this Court and for 30 days after the claims are dismissed.
Considerations 	of 	comity 	also 	direct 	this 	Court 	to 	decline 	to 	exercise
supplemental jurisdiction. The Supreme Court has held that “[n]eedless decisions
of state law should be avoided both as a matter of comity and to promote justice
between the parties, by procuring for them a surer-footed reading of applicable
law.”92 And the Ninth Circuit has cautioned that “land use planning . . . is today a
sensitive 	area 	of 	social 	policy” 	and 	that 	“[f]ederal 	courts 	must 	be 	wary 	of
intervention that will stifle innovative state efforts to find solutions to complex social
problems.”93 Perhaps in recognition of the value of review by state courts of local
land 	use 	decisions, 	the 	Anchorage 	Municipal 	Code 	provides 	that 	a 	person
91 Gibbs, 383 U.S. at 726.
92 Id.
93 Rancho Palos Verdes Corp. v. City of Laguna Beach, 547 F.2d 1092, 1094–95 (9th Cir. 1976).
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aggrieved by a final decision of the Board of Adjustment may appeal to the superior
court.94 If this Court were to retain jurisdiction over Counts I through VII, the parties
would be deprived of the opportunity to litigate these claims before the Alaska
Court system, which has more experience in handling such matters and is better
equipped to balance the complex legal and factual issues of local concern.
In 	light 	of 	the 	forgoing, 	this 	Court 	declines 	to 	exercise 	supplemental
jurisdiction over Counts I through VII.
II. 	Rule 12(b)(6)
The parties have fully briefed whether dismissal of all claims is warranted
pursuant to Rule 12(b)(6). 	However, the Court finds that dismissal of Counts I
through VII is appropriate under Rule 12(b)(1) and abstains from deciding Counts
VIII and IX, as discussed below. 	Therefore, the Court does not reach the
Municipality’s arguments under Rule 12(b)(6) at this time.95
III. 	Pullman Abstention
Because the Court declines to exercise supplemental jurisdiction over
Counts I through VII, this Court must now decide whether to temporarily abstain
94 Anchorage Municipal Code § 21.03.050D.3 and .5.
95 See e.g., Northern Hospitality Group, Inc. v. Poynter, No. 3:22-cv-00012-JMK, 2022 WL
3028037 at *4 (D. Alaska Aug. 1, 2022) (“The Court finds that dismissal of Defendant’s
counterclaim is appropriate under Rule 12(b)(1) and therefore does not reach Plaintiffs’ arguments
under Rule 12(b)(6)).
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from determining Plaintiffs’ remaining federal claims pending resolution of Counts
I through VII in state court in accordance with Railroad Commission of Texas v.
Pullman Co.96 	Neither party in this case has moved for abstention; but the Court
can raise the issue sua sponte.97
The Pullman abstention doctrine “allows postponement of the exercise of
federal jurisdiction when ‘a federal constitutional issue . . . might be mooted or
presented in a different posture by a state court determination of pertinent state
law.’”98 	“By abstaining in such cases, federal courts will avoid both unnecessary
adjudication of federal questions and ‘needless friction with state policies . . . .’”99
If the Court abstains under Pullman, the proper course of action is to retain
jurisdiction and stay the action pending final disposition of Plaintiffs’ state court
action, and not dismissal.100
Pullman 	abstention 	is 	warranted 	if 	the 	following 	three 	conditions 	are
satisfied: “(1) the federal plaintiff’s complaint requires resolution of a sensitive
96 312 U.S. 496 (1941).
97 See Richardson v. Koshiba, 693 F.2d 911, 915 (9th Cir. 1982).
98 Columbia Basin Ap’t Ass’n v. City of Pasco, 268 F.3d 791, 801 (9th Cir. 2001) (quoting Kollsman
v. City of L.A., 737 F.2d 830, 833 (9th Cir. 1984)).
99 Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984) (alteration in original) (quoting Pullman,
312 U.S. at 500).
100 Santa Fe Land Imp. Co. v. City of Chula Vista, 596 F.2d 838, 841 (9th Cir. 1979).
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question of federal constitutional law; (2) the constitutional question could be
mooted or narrowed by a definitive ruling on the state law issues; and (3) the
possibly determinative issue of state law is unclear.”101
As to the first requirement, the Ninth Circuit has “consistently held that land
use planning is a sensitive area of social policy that meets the first requirement for
Pullman abstention.”102 	This case directly implicates land use planning because
Plaintiffs are asking the Court to decide whether the Municipality violated state and
federal law by approving S12599.
As to the second requirement, resolution in the state courts of the municipal
law questions could moot or narrow Plaintiffs’ federal constitutional claims. 	If, for
example, the state court were to grant Plaintiffs the relief that they seek—
invalidation of the approval of S12599—this Court would not need to decide the
federal constitutional question of whether Plaintiffs are entitled to a remedy based
upon the alleged violations of the due process and equal protection clauses of the
United States Constitution.103
101 Potrero Hills Landfill, Inc. v. Cnty. of Solano, 657 F.3d 876, 888 (9th Cir. 2011) (quoting Spoklie
v. Montana, 411 F.3d 1051, 1055 (9th Cir. 2005)).
102 San Remo Hotel v. City and Cnty. of S.F., 145 F.3d 1095, 1105 (9th Cir. 1998) (citing Sinclair
Oil Corp. v. Cnty. of Santa Barbara, 96 F.3d 401, 401 (9th Cir. 1996)); see also Kollsman, 737 at
833; Rancho Palos Verdes Corp., 547 F.2d at 1094.
103 See, e.g., C-Y Dev. Co. v. City of Redlands, 703 F.2d 375, 377–79 (9th Cir. 1983).
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As to the third requirement, the Ninth Circuit has observed that “a local
government’s enactment of land use regulations ‘is by nature a question turning
on the peculiar facts of each case in light of the many [applicable] local and state-
wide land use laws.’”104 	“We do not claim the ability to predict whether a state
court would decide that the [local government] here abused its discretion.”105 This
case involves the application of the facts to and consideration of 30 provisions of
the Anchorage Municipal Code and associated regulations such that “the possibly
determinative issue[s] of state law [are] unclear.”106
CONCLUSION
Based on the foregoing,
IT IS ORDERED that Counts I through VII are DISMISSED because the
Court declines to exercise supplemental jurisdiction over Counts I through VII.
These Counts are dismissed without prejudice to Plaintiffs pursuing of those claims
in state court pursuant to 28 U.S.C. § 1367(d).
IT IS FURTHER ORDERED that this action, now consisting of only Counts
VIII and IX, is STAYED. The Court retains jurisdiction. The stay will be lifted upon
104 Sinclair Oil Corp, 96 F.3d at 410 (alteration in original) (quoting Santa Fe Land Imp. Co., 596
F.2d at 841).
105 Id.
106 Potrero Hills Landfill, Inc., 657 F.3d at 888 (quoting Spoklie, 411 F.3d at 1055).
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the parties’ submission of written statements either attaching a final state-court
decision or explaining a change in circumstances that warrants lifting of the stay.
The parties shall file a report on the status of the state court proceedings on or
before April 30, 2023, and every six months thereafter.
IT IS FURTHER ORDERED that the motion at Docket 14 is GRANTED in
part and DENIED in part as set forth herein.
DATED this 11th day of October, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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