author: EASTAUGH, Justice.

text:
    Kevin and Yvette O’CONNOR, Appellants, v. STAR INSURANCE COMPANY, Appellee.
    No. S-10500.
    Supreme Court of Alaska.
    Dec. 26, 2003.
    William R. Satterberg, Jr., The Law Offices of William R. Satterberg, Jr., Fairbanks, for Appellants.
    John C. Pharr, Law Offices of John G. Pharr, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH,' BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Star Insurance Company issued a licensing surety bond to a general contractor under AS 08.18.071. Kevin and Yvette O’Connor sued Star alleging, among other things, that Star tortiously breached a duty they claimed Star owed them to -impartially investigate their claim against the contractor. The superior court ruled that the undisputed, facts showed that Star acted reasonably. It consequently granted summary judgment to Star on the O’Connors’ tort claims against Star. The O’Connors appeal. -We affirm the summary judgment, because the O’Connors have not established that Star owed them an actionable tort duty to investigate their claim against the contractor.

II. FACTS AND PROCEEDINGS

Contractors.must obtain a state-issued certificate of registration to perform contracting work in Alaska. Alaska Statute 08.18.071 requires general contractors to file either a $10,000 cash deposit or a $10,000 surety bond with the Commissioner of the Department of Community and Economic Development before receiving a certificate of registration. Under AS 08.18.071(a)(3), the bond is conditioned on payment of all amounts “adjudged” against the contractor for negligent or improper work, or for breach of contract. Per AS 08.18.071(b), the cash deposit has the same implicit purpose. We refer here to a surety bond satisfying AS 08.18.071 as a “licensing bond.”

Homestead Builders, Inc. was a construction contractor licensed to do business in Alaska. It obtained a $10,000 licensing bond from Star Insurance Company to satisfy AS 08.18.071. The bond was in effect from February 11, 1997 to February 11, 2000. In its bond application Homestead Builders agreed to indemnify, defend, and hold harmless Star against any monetary loss due to a claim or demand against the bond, and against any legal expenses incurred by Star relating to the bond.

Kevin and Yvette O’Connor hired Homestead Builders and one of Homestead Builders’s owners, Ken Born, to perform construction work on their home. The work occurred in 1997 and 1998. The O’Connors were unhappy with the work and sued Homestead Builders, Born, and Star in superior court, alleging that the construction “was deficient, unworkmanlike, and in violation of acceptable building standards, code requirements, and various promises [made] ... with respect to the quality of construction.” The complaint sought damages exceeding $50,000 and alleged that Star was liable to the O’Connors to the full extent of the licensing bond Star issued to Homestead Builders.

After Homestead Builders and Born filed an answer to the O’Connors’ complaint, Star exercised its rights under the indemnity agreement Homestead Builders signed and tendered defense of the O’Connors’ suit to Homestead Builders. Homestead Builders’s attorney then entered an appearance for Star and filed on Star’s behalf an answer to the O’Connors’ complaint.

Two other claimants, whose claims were unrelated to the O’Connors’ suit, also filed claims against the licensing bond Star issued to Homestead Builders. Homestead Builders and Born filed for bankruptcy July 28, 2000.

Star then filed a complaint for interpleader in state district court naming the O’Connors among the defendants. Star’s interpleader complaint alleged that the multiple claims against the licensing bond exceeded the value of the bond. Star’s complaint asked that Star be permitted to pay $10,000 into the registry of the court, and sought an order exonerating the bond.

The O’Connors filed an answer to Star’s interpleader complaint, and claimed that they should be awarded all interpled sums. The O’Connors also counterclaimed, alleging that Star, as the surety, owed them “a duty under Alaska law to fairly, fully, and impartially investigate the claim of [the] O’Connors and all other[ ] [claims] against the bond.” Their counterclaim alleged that Star failed to investigate their claim despite clear notification, and that Star’s failure to investigate was in bad faith. The O’Connors later argued that Star owed them a duty of good faith and fair dealing, and that the breach of that duty entitled the O’Connors to maintain' a bad faith tort action against Star.

Star moved for summary judgment on the O’Connors’ bad faith counterclaim in the in-terpleader action. Star argued that the tort of bad faith did not exist in the licensing bond context. It argued alternatively that even if a bad faith cause of action did exist in the licensing bond context, Star did not breach a duty it owed to the O’Connors.

After filing their counterclaim in the district court interpleader action the O’Connors filed an amended complaint in their superior court action against Homestead Builders, Born, and Star. The amended complaint added “Count II,” which asserted a bad faith claim against Star for its alleged failure to “fairly, fully, and impartially investigate the claim of [the] O’Connors and all other[ ] [claims] against the bond.” The O’Connors’ counterclaim in the interpleader action and Count II in their amended complaint both alleged that Star owed the O’Connors a duty to investigate the third-party claims against the licensing bond Star issued to Homestead Builders, and that Star breached this duty in bad faith by not investigating the O’Connors’ claim against Homestead Builders.

Star’s interpleader action was consolidated in the superior court with the O’Connors’ original suit against Homestead Builders, Born, and Star. Star then moved for summary judgment on Count II of the O’Connors’ amended complaint. Star argued that the O’Connors could not demonstrate a genuine issue of material fact as to the O’Connors’ tort damages claim against Star, or. as to Star’s liability for punitive damages.

Star later amended its interpleader complaint to add two other defendants who had made claims against the licensing bond Star issued to Homestead Builders.

The superior court granted summary judgment to Star on the O’Connors’ bad faith counterclaim to Star’s interpleader complaint. The superior court ruled that the tort of bad faith existed in the context of licensing bonds, but that the undisputed facts showed that Star did not breach a duty it owed to the O'Connors. The superior court later granted summary judgment to Star on Count II of the O’Connors’ amended complaint which, like the O’Connors’ interpleader counterclaim, alleged a bad faith failure to investigate.

The O’Connors appeal the grants of summary judgment on their bad faith claims.

III. DISCUSSION

A. Standard of Review

We apply our independent judgment when reviewing a lower court’s interpretation of statutes and other related legal questions. We review rulings on questions of fact under the clearly erroneous standard. We “may affirm the superior court on any basis appearing in the record.”

B. The O’Connors Have Not Established the Existence of an Actionable Tort Duty.

The superior court held that Star acted reasonably and thereby discharged the duty it owed the O’Connors. But although the superior court granted summary judgment, to Star on that ground, it also held that “the tort of bad faith exists in the licensing bond context.”

The O’Connors have appealed the ruling that Star acted reasonably. The issue whether Star owed the O’Connors an actionable tort duty was not initially briefed on appeal. We consequently ordered supplemental briefing on the question whether licensing bond sureties owe a duty of good faith and fair dealing to parties who have negligence claims against bonded contractors.

In holding that the tort of bad faith existed in the licensing bond context, the superior court relied on our decision in Loyal Order of Moose v. International Fidelity Insurance Co. The superior court correctly noted that all contracts in Alaska contain an implied covenant of good faith and fair dealing as a matter of law. It then observed, citing Loyal Order of Moose, that a covenant of good faith and fair dealing may give rise to a tort claim for bad faith. The superior court relied on our holding in Loyal Order of Moose that “an implied covenant of good faith and fair dealing exists between a surety and its obligee on payment and performance bonds” in the construction context. The superior court treated licensing bonds like payment or performance bonds, and concluded that Star owed the O’Connors a duty of good faith and fair dealing and that breach of that duty would give rise to a tort action for bad faith.

The superior court then quoted our statement in Loyal Order of Moose that a “surety may satisfy its duty of good faith to its obligee by acting reasonably in response to a claim by its obligee, and by acting promptly to remedy or perform the principal’s duties where default is clear.” The superior court held that the undisputed facts showed that Star acted reasonably. The court ruled that Star acted reasonably (1) in tendering defense of the 'O’Connors’ claim to Homestead Builders under the terms of Star’s indemnity agreement with Homestead Builders; (2) in not paying on the bond before Homestead Builders’s negligence was established; and (3) in filing an interpleader action to resolve the multiple claims against the bond after Homestead Builders filed for bankruptcy. It consequently granted summary judgment to Star on the O’Connors’ bad faith tort claims.

The O’Connors argue that Star owed them a duty to “independently investigate” their claim against Homestead Builders, and that Star breached this duty by tendering to Homestead Builders the defense of the O’Connors’ claim without conducting its own investigation. In opposing Star’s motion for summary judgment, the O’Connors argued in the superior court that “not once did Star make a reasonable independent investigation into [the O’Connors’] claims.” (Emphasis in original.) Similarly, the O’Connors argued that

[a]n examination of the disclosures made by Star ... reveals not one piece of information related to any effort by Star to at any time independently investigate [the O’Connors’] claim. Star’s only response to the allegation of bad faith and failure to independently investigate is to state that Star tendered the defense to its principal, and later commenced the interpleader suit.

(Emphasis added.)

The O’Connors’ supplemental appellate arguments regarding the duties Star owed as licensing bond surety generally track the reasoning of the superior court. The O’Connors discuss the similarities between an insurer’s duties to its insured and a surety’s duty to its obligee; they rely heavily on our holding in Loyal Order of Moose. They argue that Star, as surety, owed them a duty of good faith and fair dealing, and that Star’s breach of this duty gives rise to a tort action for bad faith. We held in Loyal Order of Moose that a “failure by a surety minimally to investigate its principal’s alleged default may constitute bad faith if that investigation would confirm the obligee’s allegations in material part.” Relying on this holding, the O’Connors assert that we “must find that Star is directly bound to independently investigate claims submitted by the O’Connors, and others affected as well, and to be directly responsible for losses incurred due to Homestead Builders’s negligent or improper work.” (Emphasis in original.)

Our holding in Loyal Order of Moose addressed payment and performance bonds for construction contracts. We held that sureties on those bonds owe their obligees a duty of good faith and fair dealing, and that breach of that duty gives rise to an action for bad faith. We reasoned that the surety owed its obligee a duty of good faith and fair dealing because the surety relationship involved there was like insurance, and insurers are subject to bad faith tort liability.

The O’Connors’ reliance on Loyal Order of Moose is misplaced because payment and performance bonds differ from licensing bonds of the sort Star issued here. We noted in Loyal Order of Moose that “[pursuant to the parties’ contract, for included additional consideration, Darling [the contractor and principal] obtained performance and payment bonds from IFI [the surety] naming Moose Lodge as ‘obligee.’ ” The purpose of the performance bond was to ensure that the work was completed, and the purpose of the payment bond was to ensure that the subcontractors were paid for materials and labor.

In comparison, licensing bonds are statutorily mandated, and their value is determined by statute, rather than by the value of any given project or the number of the contractor’s projects. And unlike a project owner who requires the contractor to obtain specific payment or performance bonds covering the project, an owner like the O’Connors does not pay additional consideration for licensing bonds because, at least in theory, only a licensed contractor may perform construction work. Consequently, a person hiring a construction contractor, at least in theory, cannot hire an unlicensed contractor. There is no incremental additional licensing bond cost attributable to a particular project.

Similarly, the licensing bond suretyship arrangement is not structured to guarantee the performance of, or payment for, a particular construction contract. Rather, as we held in Jones v. Short, the purpose of the bonding requirement in AS 08.18 is to “provid[e] a fund against which claims may be made.” Moreover, because AS 08.18.071 permits contractors to file a cash deposit or a licensing bond to become registered, not all contractors necessarily obtain licensing bonds.

The analogy between insurance contracts and suretyships discussed in Loyal Order of Moose therefore does not apply in the licensing bond context. Nor do we find in Loyal Order of Moose any basis for placing a duty on licensing bond sureties to independently investigate third-party claims against bonded contractors. By “third-party claims” we mean claims made by individuals, like the O’Connors, who are neither the principal (contractor) nor the surety (insurer) in a licensing bond suretyship arrangement of the sort contemplated in AS 08.18.071.

Likewise, we find in AS 08.18.071 no basis for imposing on licensing bond sureties a duty to independently investigate third-party claims against bonded contractors. Per AS 08.18.071(a)(3), a contractor’s licensing bond must be conditioned on a promise to pay all “amounts that may be adjudged against the [contractor] by reason of negligent or improper work or breach of contract in the conduct of the contracting business.” The statute nowhere states or implies that licensing bond sureties have a duty to independently investigate claims made against bonded contractors. The statutory language only requires that licensing bonds be conditioned on a promise to pay amounts adjudged against the contractor.

Furthermore, as we noted above, AS 08.18.071(b) gives contractors the option of filing a cash deposit with the Commissioner of the Department of Community and Economic Development “[i]n lieu of the surety bond.” If the contractor places a cash deposit, the commissioner will not pay claimants from a contractor’s cash deposit until a final judgment is entered. The O’Connors acknowledged below that the commissioner does not owe third-party claimants a duty to investigate claims against contractors who file cash deposits. Given that AS 08.18.071 permits contractors to choose between filing a cash deposit or a surety bond, it would be incongruous to impose on licensing bond sureties a duty to independently investigate third-party claims even though the commissioner owes no equivalent duty when contractors file cash deposits.

We therefore discern nothing in AS 08.18 that can be read to impose on licensing bond sureties a duty to independently investigate third-party claims against bonded contractors.

Because the O’Connors have not established that Star owed them an actionable duty to independently investigate the O’Connors’ claim against the bonded contractor, and because we see no basis in precedent or in statute for imposing such a duty, we decline to hold that Star by virtue of issuing the licensing bond owed the O’Connors an actionable duty to independently investigate the O’Connors’ claim against Homestead Builders.

Because we hold that Star owed the O’Connors no actionable tort duty to independently investigate their claims against Homestead Builders, it is unnecessary for us to consider Star’s contention that licensing bond sureties should not be subject to tort damages for breaches of the covenant of good faith and fair dealing generally. Star’s reliance on Cates Construction, Inc. v. Talbot Partners, in which the California Supreme Court held that obligees of construction performance bonds may not recover in tort for a surety’s bad faith, implies that Star is asking us to overrule Loyal Order of Moose. Nothing in our decision today should be viewed as inconsistent with our holding in Loyal Order of Moose.

IV. CONCLUSION

For the reasons discussed above, we AFFIRM the grants of summary judgment on the O’Connors’ bad faith claims against Star.

      . At all pertinent times, AS 08.18.011 provided in part that "[a] person may not submit a bid or work as a contractor until that person has been issued a certificate of registration by the [Department of Community and Economic Development].” The legislature amended section .011 in 2003. Ch. 134, § 4, SLA 2003. The 2003 amendment inserted the words "as a contractor” after the word "registration” in the quoted passage.

      . At all pertinent times, AS 08.18.071 provided in part:
      (a) Each applicant shall, at the time of applying for a certificate of registration, file with the commissioner a surety bond running to the state conditionéd upon the applicant's promise to pay all
      (1) taxes and contributions due the state and political subdivisions;
      (2) persons furnishing labor or material or renting or .supplying equipment to the applicant; and
      (3)amounts that may be adjudged against the applicant by reason of negligent or improper work or breach of contract in the conduct of the contracting business or by reason of damage to public facilities occurring in the course of a construction project.
      (b) If the applicant is a general contractor, the amount of the bond shall be $10,000; if the applicant is a mechanical or specialty contractor, the amount of the bond shall be $5,000. In lieu of the surety bond the applicant may file with the commissioner a cash deposit or other negotiable security acceptable to the commissioner in the amount specified for the bonds.

      (Emphasis added.) The legislature amended section .071 in 2003. Ch. 134, §§ 4, 5, SLA 2003. The amendment is not material to the present dispute.

      . Cook Inlet Keeper v. State, 46 P.3d 957, 961 (Alaska 2002); Fancyboy v. Alaska Vill. Elec. Coop., Inc., 984 P.2d 1128, 1132 (Alaska 1999).

      . Dunn v. Dunn, 952 P.2d 268, 270 (Alaska 1998) (quoting R.F. v. S.S., 928 P.2d 1194, 1196 n. 2 (Alaska 1996)).

        .Far N. Sanitation, Inc. v. Alaska Pub. Utils. Comm'n, 825 P.2d 867, 869 n. 2 (Alaska 1992).

      . Loyal Order of Moose v. Int’l Fid. Ins. Co., 797 P.2d 622 (Alaska 1990).

      . The superior court cited Alaska Pacific Assurance Co. v. Collins, 794 P.2d 936, 947 (Alaska 1990). We there held that "[a] covenant of good faith and fair dealing is an implied component of all contracts as a matter of law.”

      . Loyal Order of Moose, 191 P.2d at 626 (noting that breach of duty of good faith and fair dealing in insurance context sounds in tort); see also State Farm Fire & Cas. Co. v. Nicholson, 777 P.2d 1152, 1154-56 (Alaska 1989).

      . Loyal Order of Moose, 797 P.2d at 626.

      . Id. at 628 (footnote omitted).

      . id.

      . Id. at 627-28.

      . Id. In Loyal Order of Moose we compared State Farm Fire & Casualty Co. v. Nicholson, 777 P.2d 1152, 1157 (Alaska 1989) (holding "an insurer's bad faith failure to settle a first-party claim is a tort”) with O.K. Lumber Co. v. Providence Washington Insurance Co., 759 P.2d 523, 525-26 (Alaska 1988) (holding that liability insurer did not owe duty of good faith and fair dealing to injured third-party claimant), and concluded: "In our view the relationship of a surety to its obligee — an intended creditor third-party beneficiary — is more analogous to that of an insurer to its insured than to the relationship between an insurer and an incidental third-party beneficiary." Loyal Order of Moose, 797 P.2d at 628.

      . Loyal Order of Moose, 797 P.2d at 623.

      . Id. at 623-24.

      . AS 08.18.011 (registration required); AS 08.18.071 (bond or deposit required for registration).

      . AS 08.18.011; AS 08.18.071.

      . Unlicensed contractors are also disfavored under Alaska law. AS 08.18.151 prohibits unregistered contractors from bringing actions in . state courts for breach of contract or to collect compensation for work for which registration is required without proving that the contractor was a registered contractor at the time of contracting for the performance of the work. See Gross v. Bay shore Land Co., 710 P.2d 1007, 1013 (Alaska 1985).

      . Jones v. Short, 696 P.2d 665, 668 (Alaska 1985).

      . AS 08.18.071.

      . See Loyal Order of Moose v. Int'l Fid. Ins. Co., 797 P.2d 622, 627-28 (Alaska 1990).

      . AS 08.18.081(b) states: "If a judgment is entered against the cash deposit, the commissioner, upon receipt of a certified copy of a final judgment, shall pay the judgment from the amount of the deposit, in accordance with the priorities set out in (a) of this section.” 12 Alaska Administrative Code (AAC) 21.140(a) (2000) states: "A claimant who obtains final judgment against a contractor may tender to the commissioner a certified copy of the final judgment with the request that payment be made upon the judgment from the proceeds of the cash deposit."

      . Compare Cates Constr., Inc. v. Talbot Partners, 21 Cal.4th 28, 86 Cal.Rptr.2d 855, 980 P.2d 407, 410 (1999) (holding tort recovery inappropriate for breach of implied covenant of good faith and fair dealing in context of construction performance bond) with Loyal Order of Moose, 797 P.2d at 627-28 (reaching opposite conclusion).


source: Caselaw Access Project

author: BRYNER, Justice.

license: Public Domain

text:
    David DYKSTRA, Appellant, v. MUNICIPALITY OF ANCHORAGE, LAND USE DIVISION, Appellee.
    No. S-10512.
    Supreme Court of Alaska.
    Jan. 2, 2004.

      David Dykstra, pro se, Anchorage.
    Linda J. Johnson and Joyce W. Johnson, Deputy Municipal Attorneys, and William A. Greene, Municipal Attorney, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I.INTRODUCTION

The Municipality of Anchorage’s zoning board of examiners and appeals affirmed an enforcement order directing David Dykstra to stop using the area surrounding his four-plex as a storage yard for cars. Dykstra appeals, contending that collecting and storing ears is a permitted accessory use under zoning ordinances governing R-3 property; alternatively, he argues, the ordinances describing accessory uses are unconstitutionally vague. We reject Dykstra’s claim of vagueness and find ample evidence to support the board’s decision that his car collection exceeded the scope of a permissible accessory R-3 use. But we nonetheless hold that, before enforcing its order, the board must give Dykstra reasonable notice of the steps needed to correct his violation. Because the board did not adopt specific findings, as required by Anchorage’s zoning code, it failed to give Dykstra adequate guidance. We thus remand for entry of findings.

II. FACTS AND PROCEEDINGS

David Dykstra owns a four-plex in an Anchorage neighborhood zoned as an R-3 multiple-family residential district. Dykstra collects cars as a hobby and regularly keeps twenty or more cars on his property and in the adjoining right of way. This car collection has been the source of tension between Dykstra and his neighbors for several years. In response to neighborhood complaints, the Municipality of Anchorage’s Building Safety Division concluded that Dykstra was using his property as a storage yard, in violation of the ordinances governing permissible R-3 property uses. The division sent Dykstra an enforcement order informing him of its conclusion, directing him to discontinue using the property as a storage yard, and requiring him to submit for municipal review and approval a written plan to abate the violation.

Dykstra petitioned the zoning board of examiners and appeals, asking it to review the enforcement order. After conducting a hearing, the board denied Dykstra’s petition. Although the board notified Dykstra that it would approve written findings at a later meeting, the board evidently never adopted findings. Dykstra appealed to the superior court, which affirmed the board’s decision.

Dykstra appeals.

III. DISCUSSION

The controversy in this case arises from municipal zoning ordinances describing permissible uses for Dykstra’s property, which is located in a R-3 multiple-family residential district. Anchorage Municipal Code (AMC) 21.40.050 governs R-3 districts. This provision defines R-3 use districts as primarily residential in character, stating that they are “intended to include urban and suburban single-family, two-family and multiple-family residential uses with medium population densities.” Subsection .050(B) describes the principal uses allowed in these districts; subsection .050(C) lists permissible accessory uses; and subsection .050(D) sets out conditional uses.

The principal uses for R-3 districts include various kinds of family dwellings and structures directly related to family living, such as schools, parks, libraries, day care facilities, and churches. The R-3 list of permissible “accessory” uses encompasses “[p]rivate storage in yards of noncommercial equipment, including noncommercial trucks, boats, aircraft, campers or travel trailers, in a safe and orderly manner and separated by at least five feet from any property line.” The zoning code defines “accessory” uses to mean uses that are “customarily subordinate or incidental to and located on the same lot with a principal use, building or structure.”

Under the zoning code, any use listed as a permitted, accessory, or conditional use in one district but not in another becomes a prohibited use wherever it is not listed. The zoning code lists open storage yards as a permitted principal use in 1-1 — light industrial — districts. The code defines “storage yard” to include “any ... portion of a lot which is used for the sole purpose of the outdoor storage of fully operable motor vehicles ... in an orderly manner.” Since storage yards are listed as permitted uses in 1-1 districts but are not listed under AMC 21.40.050’s provisions governing R-3 districts, they are prohibited uses in R-3 districts. In the present case, the municipality reasoned that Dykstra was storing too many cars for an accessory use and was effectively running a storage yard, so he was using his property for a prohibited use.

On appeal, Dykstra challenges the municipality’s evidence and insists that his hobby of collecting cars amounted to a permitted accessory use of his property; he also alleges that the municipality’s zoning provisions are unduly vague, thus violating his constitutional right to due process.

We reject at the outset Dykstra’s claim that the zoning ordinances are unconstitutionally vague. As we have recognized on prior occasions, a statute cannot be deemed impermissibly vague merely because its meaning does not seem immediately obvious and is susceptible to reasonable dispute:

[T]he fact that people can, in good faith, litigate the meaning of a statute does not necessarily (or even usually) mean that the statute is so indefinite as to be unconstitutional. The question is whether the statute’s meaning is unresolvably confused or ambiguous after it has been subjected to legal analysis. If study of the statute’s wording, examination of its legislative history, and reference to other relevant statutes and case law makes the statute’s meaning clear, then the statute is constitutional.[]

In seeking to determine whether an apparently confusing statute is impermissibly vague, we must thus look beyond its literal terms, asking whether careful study of its history, relevant case law, and other statutory provisions can help establish a reasonably clear meaning. And even when these sources fail to resolve confusion, we will not invalidate a disputed statute as it applies to the case before us when the facts leave “no question as to [the statute’s] applicability to the particular offense” and the statute can be given a narrowing construction to ensure that “in the future the type of offense coming within its purview may be reasonably understood.”

Applying these ground mies, we find no impermissible vagueness in AMC 21.40.050’s description of a permissible accessory use. As already mentioned, this provision unquestionably allowed Dykstra to store cars on his property, but only to the extent that his actions amounted to an “accessory use.” The zoning code has expressly limited the permissible bounds of an accessory use, defining it as a use that can be considered “customarily subordinate or incidental to and located on the same lot with a principal use, building or structure.” And the code leaves no doubt concerning the purpose these provisions serve in an R-3 district: “to protect, preserve and enhance the primarily residential character of the district.”

The key issue, then, is whether existing law defines a reasonably clear point at which storing cars at a residence ceases to be an incidental use and begins to conflict with a family neighborhood’s primarily residential character. This issue appears to be one of first impression, both in Alaska and, more specifically, under Anchorage’s zoning code. But case law elsewhere provides concrete guidance concerning the usual limits of “accessory use.” The term is widely used in other jurisdictions, where cases uniformly give'accessory use a fairly narrow meaning.

•For example, eases speak of an accessory use as one that is “occasioned by or dependent upon the residential use” and one that is “minor in relation to the primary use.” Other courts have also considered whether specific levels of use qualify as accessory use. Their decisions generally recognize that even customarily acceptable accessory uses,’ such as common hobbies, have limits. For exam-pie, in Colts Run Civic Ass’n v. Colts Neck Township Zoning Board of Adjustment, 315 N.J.Super. 240, 717 A.2d 456 (1998), a New Jersey court found that keeping pets was a customary accessory use and that maintaining a racing pigeon coop was a permissible form of that use. But the court nevertheless warned that “such uses are not without limitation, which is reached when the use impairs the residential character of the neighborhood.”

Another helpful New Jersey case involved the storage of four older, unlicensed cars on a residential property. The borough there conceded that it had no evidence of commercial activity, but it nonetheless argued that vehicle storage is only permissible in commercial districts. Rejecting this argument, the court held that keeping cars as a hobby amounts to a valid incidental use as long as it “is not of such a nature, or [pursued] to such an extent, as to impair the residential character of the neighborhood.” Noting that two- and three-car families are commonplace, the court concluded that parking one or two additional cars at a residence “cannot be construed as an extension of this hobby or habit to such a degree as to impair the residential character of the district.”

Applying this approach, other courts have not hesitated to find that accessory-use limitations were violated when residential property owners carried common hobbies to uncommon extremes. For instance, the New York Court of Appeals affirmed a decision denying an application to erect a forty-four-foot rotary beam amateur radio antenna tower. Finding it “clear that, in the conduct of a hobby, the scale of its operation may well carry it beyond what is customary or permissible,” the court ruled that the proposed tower was not an accessory use customarily incidental to a residential neighborhood. In another helpful case, the Supreme Court of Iowa compared the amount of space allotted to primary and accessory uses of the property in question, holding that a steel storage building erected next to a church in a residential district exceeded the permissible bounds of an accessory building.

These cases illustrate that the Anchorage zoning code’s flexible approach to accessory use is neither uncommon nor impermissibly vague; they show that a pliant, objective test of this kind- — one that asks whether a reasonable person would consider the particular level of use in question as customary and relatively minor — can be readily understood and applied.

In the present case, even accepting Dykstra’s view of the facts, we are convinced that abundant evidence supports the conclusion that Dykstra’s car collection exceeded the type of relatively minor, customarily accepted, incidental use that an objectively reasonable resident would consider to be compatible with an R-3 district’s primarily residential character.

We nevertheless decline to affirm the board’s decision approving the municipality’s enforcement order. Although we have concluded that the evidence establishes a clear violation under any reasonable view of accessory use, it does not necessarily follow that the municipality’s enforcement order adequately communicated what Dykstra needs to do to correct his violation. As we have said, Dykstra’s case raised an issue of first impression in Anchorage. The municipality has cited no local rulings interpreting Anchorage’s zoning ordinances in comparable situations, so the board has evidently had no prior occasion to clarify the level of incidental car storage that it would consider customary in an Anchorage R-3 neighborhood.

This lack of precedent apparently discouraged Anchorage’s building safety enforcement officer from including advice in the enforcement order about corrective measures Dykstra could take to bring the property into compliance with the accessory-use .ordinance. The order simply directed Dykstra to prepare a written plan of abatement for municipal review and approval.

Ordinarily, of course, we might reasonably expect a person in Dykstra’s shoes to seek guidance in the zoning board’s decision on appeal. Indeed, the zoning code calls for such guidance, requiring the zoning board of examiners and appeals to base “every decision” affirming or reversing an enforcement order “on findings and conclusions adopted by the board.” The same provision commands that the board’s findings “must be reasonably specific so as to provide the community and, where appropriate, reviewing authorities, with a clear and precise understanding of the. reasons for the board’s decision.” Yet despite this mandate, and despite its own written assurance that it would approve written findings in Dykstra’s case, the board apparently adopted no findings or conclusions.

Given these circumstances, we think that fairness requires the board to give Dykstra reasonable notice of the kinds of steps the municipality would deem sufficient to avoid the enforcement order’s promise of future municipal sanctions for continuing non-compliance. With no prior zoning decisions delineating community standards for car storage as an accessory use in R-3 districts, the board’s failure to approve findings leaves Dykstra with inadequate notice to form a “clear and precise understanding” of the action the municipality expects him to take to avoid sanctions for non-compliance with the enforcement order.

IV. CONCLUSION

We therefore REMAND to the zoning board of examiners and appeals for entry of specific findings conforming with this opinion.

      . AMC 21.40.050(A) (1996).

      . See AMC 21.40.050(B)(1)-(11).

      . AMC 21.40.050(C)(4).

      . AMC 21.35.020.

      . AMC 21.40.015(B).

      . AMC 21.40.200(B)(2)(n)(l).

      . AMC 21.35.020.

      . De Nardo v. State, 819 P.2d 903, 908 (Alaska App.1991).

      . Holton v. State, 602 P.2d 1228, 1236 (Alaska 1979) (citing Stock v. State, 526 P.2d 3, 8 (Alaska 1974)).

      . AMC 21.40.050(C)(4).

      . AMC 21.35.020(B).

      . AMC 21.40.050(A).

      . See, e.g., Perron v. City of Concord, 102 N.H. 32, 150 A.2d 403, 406 (N.H.1959); see also 83 AmJur. 2d Zoning and Planning § 160 (“The phrase 'incidental and subordinate’ in a zoning .ordinance requires that an accessory use be minor in relation to the permitted use and that it bear a reasonable relationship to the primary use.''); Lawrence v. Zoning Bd. of Appeals, 158 Conn. 509, 264 A.2d 552, 554 (1969) (defining accessory use as being one that is subordinate and minor in significance and having a reasonable relationship with the primary use), quoted in Henry v. Bd. of Appeals, 418 Mass. 841, 641 N.E.2d 1334, 1336 (1994); see also Becker v. Town of Hampton Falls, 117 N.H. 437, 440, 374 A.2d 653 (1977) (requiring an accessory use to be incidental to or in relation to the permitted use).

      . 315 N.J.Super. 240, 717 A.2d 456, 461-62 (1998).

      . Id. at 461.

      . Borough of Chatham v. Donaldson, 69 N.J.Super. 277, 174 A.2d 213 (1961).

      . Id. at 280, 174 A.2d 213.

      . Id. at 282, 174 A.2d 213.

      . Id.

      . Presnell v. Leslie, 3 N.Y.2d 384, 387, 165 N.Y.S.2d 488, 144 N.E.2d 381 (1957).

      . Id. at 388, 392, 165 N.Y.S.2d 488, 144 N.E.2d 381.

      . Grandview Baptist Church v. City of Davenport, 301 N.W.2d 704, 709 (Iowa 1981) (citing Kowalski v. Lamar, 25 Md.App. 493, 334 A.2d 536 (1975) for the proposition that an accessory structure must be "subordinate in area, extent, or purpose to the principal use or structure").

      . AMC 21.30.160(B).

      . Id.


author: COATS, Chief Judge.

text:
    Byron S. SMITH, Appellant, v. STATE of Alaska, Appellee.
    No. A-8510.
    Court of Appeals of Alaska.
    Jan. 9, 2004.

      Amanda M. Skiles, Law Office of Dennis McCarty, Ketchikan, for Appellant.
    Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

Byron S. Smith appeals his conviction and sentence for felony driving while intoxicated (DWI). Smith contends that he was subjected to an illegal investigative stop, and that all evidence flowing from that stop should have been suppressed. For the reasons explained here, we hold that the investigative stop was justified by the facts known to the police.

Smith also contends that his sentence is flawed because the superior court, relying on Smith’s prior felony DWI conviction from Arkansas, ruled that Smith was a second felony offender for presumptive sentencing purposes. Smith contends that the Arkansas definition of felony DWI is significantly different from the Aaska definition of felony DWI, and that therefore his Akansas conviction should not have been counted as a prior felony. For the reasons explained here, we agree with Smith that his Akansas felony conviction should not have been treated as a prior felony for presumptive sentencing purposes, and that Smith therefore should have been sentenced as a first felony offender.

The investigative stop was supported by reasonable suspicion to believe that Smith ^vas driving while intoxicated

At 8:18 p.m. on April 30th, 2002, the Ket-chikan Police Department received a telephone call reporting that “there was an intoxicated man getting into a white Toyota Tercel, Akansas license 599 GHN, on Mission Street near the Five and Dime store.” Officer Bryan Perez received this report, and he saw the Toyota parked at the side of the road as he turned onto Mission Street. A Officer Perez approached, the Toyota pulled away from the curb. Officer Perez then pulled over the Toyota.

Officer Perez approached the vehicle and made contact with Smith. Ater talking to Smith, Officer Perez determined that Smith was intoxicated. He arrested him for driving while intoxicated and transported him to the Ketchikan Police Department, where Smith submitted to a breath test. The breath test produced a reading of .225 percent breath alcohol concentration.

Smith had four prior convictions in Akan-sas for driving while intoxicated. Three of these prior convictions were misdemeanors, and one was a felony. Based on these prior convictions, the State indicted Smith for felony DWI.

Smith filed a motion to suppress all of the evidence that the police obtained during and after the investigative stop of his car. He claimed that the anonymous phone call to the police station did not provide reasonable suspicion to allow Officer Perez to stop his car. The superior court denied Smith’s motion. Smith renews his argument on appeal.

Smith’s ease is controlled by Effen-beck v. State. In Effenbeck, a police dispatcher received a call from an anonymous informant who stated that “a brown Ford, Aaska license number B JL-777, stopped and bought fuel at a Union 76 station, then headed north on the Kenai Spur Highway, and that the driver was intoxicated.” The dispatcher relayed this information to a Kenai police officer. This officer eventually located the car in the parking lot of a bar. When the car pulled back onto the highway, the officer immediately stopped it. The traffic stop occurred twenty-two minutes after the dispatcher had relayed the information to the officer.

This court held that the traffic stop was supported by reasonable suspicion. We concluded that it was reasonable to infer from the telephone report that a citizen informant had personally seen Effenbeck at a gas station and had concluded that Effenbeck was intoxicated. We noted that the informant accurately described the car, and that the police located the car shortly thereafter. We observed that “[wjhile a statement that a driver was intoxicated is in part conclusory, it is the kind of shorthand statement of fact that lay witnesses have always been permitted to testify to in court.”

Smith’s case is similar to Effenbeck. According to the telephone report received by the Ketchikan police, the informant saw an intoxicated man getting into a white Toyota. From the detail of the informant’s description of the vehicle and its current location, it was reasonable for the police to infer that the informant had a good view of Smith and was reporting something that he actually and recently saw. The report was certainly not stale. Officer Perez immediately spotted the Toyota, so he was able to corroborate the location of the Toyota. As we noted in Ef-fenbeck, a situation where the police receive a credible report that someone is driving while intoxicated requires immediate police action to prevent dangerous conduct and presents an exigent circumstance. The information that Officer Perez received was sufficiently credible to justify his stop of Smith’s car. We accordingly uphold Judge Thompson’s decision denying Smith’s motion to suppress.

Smith’s prior Arkansas conviction for felony driving while intoxicated should not have been treated as a prior felony for presumptive sentencing purposes

Smith had four prior DWI convictions from Arkansas; one of these convictions was entered in December 1993, two more were entered in January 1997, and the fourth was entered in December 1997. Smith concedes that, because of these prior DWI convictions from Arkansas, his current Alaska DWI offense was properly treated as a felony under AS 28.35.030(n). That is, Smith concedes that Arkansas’s definition of DWI is similar to Alaska’s, so that Arkansas DWI convictions constitute “prior convictions” under the definition contained in AS 28.35.030(r)(4). Because of this Smith further concedes that he had been convicted of DWI at least two times on or after January 1,1996, and within the ten years preceding his current Alaska DWI offense — the predicate for a charge of felony DWI under AS 28.35.030(n).

In Alaska, felony DWI is a class C felony. A “second felony offender” — that is, a defendant who has one prior felony conviction — is subject to a 2-year presumptive term. The question in this case is whether Smith should have been treated as a second felony offender.

Smith’s fourth Arkansas DWI conviction was a felony under Arkansas law. Because of this, the Ketchikan superior court ruled that Smith was a second felony offender, and that Smith therefore faced a 2-year presumptive term.

But not all felony convictions from other states qualify as prior felonies for purposes of Alaska’s presumptive sentencing laws. Alaska Statute 12.55.145(a)(1)(B) declares that the out-of-state conviction must be for “an offense having elements similar to those of [an Alaska] felonyf.]”

Smith does not dispute that the Arkansas definition of driving while intoxicated is similar to Alaska’s definition of that offense. But Smith argues that his Arkansas conviction for felony DWI should not have been treated as a felony for presumptive sentencing purposes in Alaska — because Arkansas defines felony DWI in a way that differs from Alaska’s definition.

In order to understand the discussion that follows, one must know the history of Smith’s four DWI convictions from Arkansas;

Date of Of fense Date of Conviction
1st offense December 8,1993 August 27,1993
2nd offense January 20,1997 September 8,1995
3rd offense January 20,1997 September 23, 1995
4th offense
(treated as a felony) December 16, 1997 February 17,1996

At the time of Smith’s fourth Arkansas DWI conviction (December 1997), Arkansas law stated that a person was guilty of felony DWI if the person had three prior DWI offenses within the three years preceding them current offense. In two respects, this Arkansas statute was substantially stricter than the corresponding 1997 version of Alaska’s felony DWI statute. Our statute, AS 28.35.030(n), did — and still does — require proof of only two prior DWI convictions. And, in 1997, AS 28.35.030(n) gave the government a much longer “look — back” period-five years, compared to the three years specified by the Arkansas statute. (Since 1997, both Arkansas and Alaska have enlarged their “look-back” periods. Arkansas now has a five-year period, while Alaska now has a ten-year period for convictions entered on or after January 1,1996.).

However, the Alaska felony DWI statute is stricter than the Arkansas statute in one respect. When determining whether a defendant has the necessary number of prior convictions within the specified “look-back” period, the Arkansas statute focuses on the date when the defendant’s prior offenses were committed. The Arkansas Supreme Court held, in Rogers v. State, that for purposes of penalty enhancement, a DWI conviction relates back to the date when the criminal act was committed — “[accordingly, ... the dates the offenses were committed are the determinative dates.”

The Alaska felony DWI statute, on the other hand, focuses on the dates when the defendant was convicted. Under AS 28.35.030(n), the State must show that the defendant “has been previously convicted two or more times ... within the [five or ten] years preceding the date of the [defendant’s] present offense.” That is, the State must show that the defendant committed the current DWI offense after the defendant’s second (or subsequent) conviction was entered.

Given the facts of Smith’s case, this distinction has important consequences. Under Arkansas law, Smith’s fourth DWI was punished as a felony because (a) Smith had three prior convictions for DWI, and (b) those three prior DWI’s were committed within the three years preceding his February 1996 offense. But if Smith had committed these same offenses in Alaska, his fourth DWI could not have been charged as a felony— because, at the time Smith committed his fourth DWI (in Fébruary 1996), he had only one prior DWI conviction within the preceding five years — the conviction entered on December 8,1993.

When assessing a defendant’s status as a recidivist for purposes of statutes imposing enhanced punishment on repeat offenders, Alaska law has a long history of focusing on the date of the defendant’s prior conviction as opposed to the date on which the defendant committed the prior offense.

For example, in State v. Carlson, the Alaska Supreme Court interpreted a former statute that established a system of progressively increasing penalties for defendants who had been previously convicted of felonies. The supreme court concluded that two prior felony convictions entered on the same day could only be counted as one prior felony for purposes of this habitual offender statute. The court reasoned that, in such instances, the defendant had faced only one judicial confrontation over his misconduct and had only one opportunity for reformation.

The following year, the supreme court applied a similar construction to former AS 17.10.200, a statute that provided enhanced penalties for defendants convicted of a second narcotics-related felony. In Gonzales v. State, the court held that the enhanced sentencing provision would apply only if the defendant’s conviction for the initial offense occurred prior to the defendant’s commission of the second offense.

In State v. Rastopsoff, this court relied on the supreme court’s decisions in Carlson and Gonzales when we interpreted the statutory definition of “third felony conviction” for presumptive sentencing purposes. We held that, in order to qualify as a third felony offender, defendants must have committed their current felony offense after having been convicted of two prior felonies.

Carlson, Gonzales, and Rastopsoff demonstrate an important presumption of Alaska law: before a defendant’s sentence can be enhanced based on a prior offense, the government ordinarily must prove that the defendant was judicially confronted with his prior misconduct and was given an opportunity for reformation before the defendant committed the current offense. When we apply this policy to the definition of felony DWI codified in AS 28.35.030(n), we conclude that, in order to convict a defendant of felony DWI, the State must prove that the defendant committed his current offense after having been convicted of two prior offenses.

(But, as we indicated in Rastopsoff, a defendant who has been convicted of two separate prior offenses will be a third offender if he commits another offense, even if the convictions for the defendant’s two prior offenses were entered on the same day. The supreme court acknowledged and adopted our Rastopsoff analysis in Tulowetzke v. Department of Public Safety — holding that, for purposes of determining whether a repeat DWI defendant is subject to an enhanced period of license revocation under AS 28.15.181(c), prior convictions arising from separate incidents must be counted as separate convictions, even though the trial court may have entered those convictions at the same time.)

Because Alaska law focuses on the dates of a defendant’s prior convictions, while Arkansas law focuses on the dates of the conduct that led to those prior convictions, the question arises whether Smith’s Arkansas conviction for felony DWI can be deemed a prior felony conviction for presumptive sentencing purposes under the definition contained in AS 12.55.145(a)(1)(B). In other words, given this difference between Arkansas and Alaska law, are the elements of felony DWI in Arkansas “similar” to the elements of felony DWI in Alaska?

We view this question as a difficult one, and the answer has consequences well beyond the resolution of Smith’s ease. We have conducted a survey of state law on this issue, and it appears that various states define felony DWI in the same way that Arkansas does — i.e., by focusing on the dates of the conduct that gave rise to the defendant’s prior convictions. If we were to hold that Arkansas’s definition of felony DWI is not sufficiently “similar” to Alaska’s definition, this would mean that Alaska would not count felony DWI convictions from almost half the states in the union.

But we need not resolve this issue in order to resolve Smith’s case. Rather, we decide Smith’s case on narrower grounds. Given the dates of Smith’s Arkansas offenses and the dates on which his corresponding Arkansas convictions were entered, it is clear that if Smith had accumulated this same criminal history in Alaska, neither his third DWI nor his fourth DWI could have supported a conviction for felony DWI under Alaska law.

Smith’s third DWI was committed in September 1995, and his fourth DWI was committed in February 1996. At those times, Smith had only one prior DWI conviction: the conviction that was entered in December 1993.

As we have explained here, Alaska has long adhered to the policy that a defendant’s status as a repeat offender hinges on the date of the defendant’s prior conviction — so that a finding of recidivism will entail proof that the defendant was judicially confronted with his prior misconduct and had the opportunity for reformation before committing a repeat offense. We conclude that, regardless of whether Arkansas’s definition of felony DWI is sufficiently “similar” to Alaska’s definition to qualify as a prior felony conviction under AS 12.55.145(a)(1)(B), this longstanding policy obliges us to refuse to recognize a felony DWI conviction from another state if, given the dates of the defendant’s out-of-state offenses and resulting convictions, the defendant could not have been convicted of felony DWI if he had accumulated the same •criminal history in Alaska. For this reason, we conclude that Smith’s Arkansas felony DWI conviction should not have been deemed a “prior felony conviction” for purposes of Alaska’s presumptive sentencing laws. Smith should have been sentenced as a first felony offender, not a second felony offender.

We note, however, that all four of Smith’s Arkansas DWI convictions count as prior convictions for purposes of determining Smith’s minimum sentence under AS 28.35.030(n)(l).

We emphasize that our decision affects Smith’s sentencing in only one respect: Smith should have been treated as a first felony offender, with his sentencing governed by AS 12.55.125(k)(2), rather than as a second felony offender who was subject to the 2-year presumptive term prescribed in AS 12.55.125(e)(1). Even though Smith must be treated as a first felony offender for presumptive sentencing purposes, the sentencing judge remains entitled to consider Smith’s criminal history when deciding the appropriate sentence. We express no opinion as to whether Smith’s previously imposed sentence (2 years to serve) would be clearly mistaken if imposed again.

Conchision

The superior court properly denied Smith’s motion to suppress the evidence stemming from the investigative stop of his vehicle. However, Smith should have been sentenced as a first felony offender for presumptive sentencing purposes. We accordingly RE-MAIM'D Smith’s case to the superior court for resentencing.

      . AS 28.35.030(n).

      . 700 P.2d 811 (Alaska App. 1985).

      . Id. at 812.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id. at 812-15.

      . Id. at 814-15.

      . Id. at 813-15.

      . Id. at 813.

      . AS 28.35.030(n).

      . AS 12.55.185(12).

      . AS 12.55.125(e)(1).

      . Former Ark.Code Ann. § 5-65-111(b)(3) (1997); see Peters v. State, 286 Ark. 421, 692 S.W.2d 243, 245 (1985) (holding that the existence of the defendant's three prior offenses within the pertinent "look-back" period is an element of the felony offense under Arkansas law).

      . Compare AS 28.35.030(n) (1997), with Ark. Code Ann. § 5-65-111(b)(3) (1997).

      . Compare AS 28.35.030(n), with Ark.Code Ann. § 5-65-111(b)(3)(A).

      . 293 Ark. 414, 738 S.W.2d 412 (1987).

      . Id. at 413, 738 S.W.2d 412; see also Johnson v. State, 55 Ark.App. 117, 932 S.W.2d 347, 348 (1996) (interpreting a later version of the statute).

      . 560 P.2d 26 (Alaska 1977).

      . Former AS 12.55.050.

      . Carlson, 560 P.2d at 28-29.

      . Id. at 30.

      . 582 P.2d 630 (Alaska 1978).

      . Id. at 636.

      . 659 P.2d 630 (Alaska App.1983).

      . See AS 12.55.185(14).

      . Rastopsoff, 659 P.2d at 641 & n. 11.

      . Id. at 635-37.

      . 743 P.2d 368 (Alaska 1987).

        .Id. at 371.

      . See, e.g., State v. Petrello, 251 N.J.Super. 476, 598 A.2d 927, 927-29 (App.1991); Williams v. Commonwealth, 265 Va. 268, 576 S.E.2d 468, 469-70 (2003).

      . See Ault v. State, 73 P.3d 1248, 1250-51 (Alaska App.2003), interpreting former AS 28.35.030(o)(4), as amended by ch. 63, § 11, SLA 2001 (This statute has now been renumbered as AS 28.35.030(r)(4).).