## Facts

- Ben Lomond, Inc. bought the S & S Apartments complex in Anchorage in 1983; the property consisted of eight two-story buildings built in 1952 and had been vacant and condemned.
- Before securing firm financing, Ben Lomond took possession and began stripping buildings to bare framing.
- Ben Lomond applied for building and demolition permits to gut and renovate the complex.
- The renovation plans would increase the number of apartment units from 224 to 280, increasing density.
- The complex was a lawful nonconforming use under Anchorage zoning.
- After issuing permits, the Municipality revoked them upon concluding the project would unlawfully expand or intensify the nonconforming use.
- Ben Lomond did not appeal the revocation to the Board of Adjustment and did not seek a variance or other administrative relief; instead, it sued the Municipality for money damages based on alleged constitutional violations.

## Issues

1. Whether revocation of building permits for a project that would increase units in a nonconforming use constitutes a compensable constitutional violation warranting money damages.
2. Whether a property owner may pursue judicial damages for an alleged taking or due process violation without first exhausting available municipal administrative remedies (appeal/variance).
3. Whether any vested right arose from the issued permits that limited the Municipality’s authority to revoke them after determining the project violated nonconforming-use restrictions.

## Decision

- The Alaska Supreme Court affirmed judgment for the Municipality.
- The court held Ben Lomond was not entitled to damages arising from the permit revocation.
- The court affirmed on grounds different from the trial court’s municipal-immunity rationale, relying on the absence of a compensable constitutional violation and Ben Lomond’s failure to pursue administrative remedies.
- The Municipality could revoke permits that would allow an impermissible expansion or intensification of a nonconforming use.

## Legal Principles

- A property owner generally has no vested right to expand or intensify a nonconforming use; municipalities may bar increases in density that increase the degree of nonconformity.
- A permit does not create a compensable entitlement to proceed with work that violates zoning limits on nonconforming uses; revocation to enforce those limits is ordinarily within municipal authority.
- Claims seeking damages for alleged takings or due process violations in land-use disputes typically require exhaustion of available administrative remedies (such as appeals and variances) to obtain a final, reviewable determination.
- Money damages are unavailable absent a clear compensable constitutional deprivation; denial of permission to pursue an unprotected expansion of a nonconforming use does not, by itself, establish a taking.

## Conclusion

The court upheld Anchorage’s revocation of renovation permits because the project would increase units and intensify a nonconforming use, and because Ben Lomond bypassed available administrative review; without a vested right or final administrative determination, no compensable constitutional violation supporting damages was shown.


Ben Lomond, Inc. v. Municipality of Anchorage, 761 P.2d 119 (Alaska 1988)