Delay sought in dog case

Appeal ruling requested

September 19, 2006

By MARY AMES/Frontiersman

WASILLA - Whether the shelties sit and stay or conform to Wasilla's city code and go is now up to Palmer Superior Court Judge Beverly Cutler.

In a long-simmering case that pits a homeowner against city code and subdivision covenants, Ken Jacobus, attorney for the shelties' owner, Deborah Luper, filed two motions Wednesday, asking the court for a stay of enforcement, which would allow Luper's dogs to remain in place as long as the case remains in the courts. Jacobus also filed an appeal of a decision by a hearing officer that denied Luper's appeal for a kennel license.

Tom Klinkner, attorney for the city, responded Friday with a motion opposing Jacobus's request for a stay, asking the court to allow the city to remove Luper's dogs within 10 days, if Luper would not remove them herself.

The Bay View subdivision's covenants forbid dog kennels, and city code mandates anyone with more than three dogs to have a kennel license. Luper moved into the subdivision in December 2004 with at least 18 dogs. Neighbors complained to the city, voicing concerns about sanitation, the dogs' safety when they got loose and the violations of covenants and city code.

The city cited Luper for code violations and animal nuisance last year. In February, Magistrate David Zwink declared Luper's animals were not a nuisance and gave her 90 days to comply with city code. The city filed an injunction against Luper at the end of 90 days.

After hearing oral arguments Sept. 11, Judge Cutler sided with the city, holding Luper to the city's code. Judge Cutler set April 16 for a non-jury trial for Luper's second appeal of the denial of her second application for a kennel license. And, the judge ruled, Luper may not continue to violate city code while the appeal works its way through the courts.

In the motion Jacobus filed, he requested the court hold off on enforcement, faulting the city for thwarting Luper's &#8220attempts to resolve” the whole problem.

&#8220Ms. Luper cannot even get financing for a new home because of a pending half-million dollar lawsuit against her by the city of Wasilla,” he wrote. &#8220There is no harm in allowing the show dogs to remain where they are while this matter is being fully resolved.”

In a sworn statement submitted to the court, Luper stated that enforcement of city code would cause her &#8220irreparable harm,” saying she is unemployed and &#8220The city of Wasilla has sued me for an amount in excess of a half million dollars.” Luper also claimed the city singled her out for code enforcement because it never cited a neighbor who had seven dogs nor had it &#8220dealt with the myriad of other barking dogs” in her area.

&#8220In July or August 2005,” Luper called Houston Animal Control about dogs repeatedly barking between 5 a.m. and 6:30 a.m., but animal control, &#8220never even returned my call,” she wrote. Luper said the Planning Commission was wrong to deny her a permit for a kennel, the city's appeal hearing was &#8220highly political and involved a highly charged emotional climate where facts were distorted and irrelevant.”

And, Luper wrote, the city's mayor pursued &#8220a personal political vendetta” against Luper, which included ending Luper's employment with Matanuska Electric Association.

Klinkner responded by saying Luper's zoning violations had been &#8220flagrant and continuous for 16 months.”

Any hardship Luper may suffer from the city's code enforcement, &#8220is of her own making.”

Luper doesn't have to move, she only has to remove the excess number of dogs from her property, Klinkner wrote. The dogs can be sold, boarded with others or &#8220as seems to be the case in the recent past - sent for showing to the Lower 48 states.” She need not sell her property - she can lease it, and rent property in a more suitable location, Klinkner wrote.

&#8220When found guilty of violating the zoning ordinance, and given an additional 90 days to resolve the violation, she again did nothing,” Klinkner wrote. &#8220Of course, any solution will be challenging given 10 days' notice, but Luper has had over a year's notice of the need to resolve this problem, and has done nothing.”

Luper hadn't shown discriminatory intent to support her claim of the city's selective enforcement its code requirements, nor did Luper explain what conduct by the mayor constituted a political vendetta, he wrote.

Klinkner said he does not expect another hearing before Judge Cutler handed down her decision.

When asked about the half-million dollar lawsuit, Mayor Dianne M. Keller said the city issued Luper one citation, not one citation for each day she violated city code.

&#8220We don't want money,” Keller said. &#8220We want compliance to code.”

The city had offers from rescue groups to take the dogs, she said, and some of the dogs are owned in part by others who may want to claim them.

Contact Mary Ames at 352-2284 or mary.ames@frontiersman.com.