      Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@akcourts.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

BILL YANKEE,                                   )
                                               )        Supreme Court No. S-16098
                      Appellant,               )
                                               )        Superior Court No. 1JU-14-00681 CI
              v.                               )
                                               )        OPINION
CITY AND BOROUGH OF                            )
JUNEAU, CHRIS GILBERTO,                        )        No. 7206 – October 20, 2017
and ANN GILBERTO,                              )
                                               )
                      Appellees.               )
                                               )

              Appeal from the Superior Court of the State of Alaska, First
              Judicial District, Juneau, Louis J. Menendez, Judge.

              Appearances: Robert S. Spitzfaden, Gruening & Spitzfaden,
              APC, Juneau, for Appellant. Robert H. Palmer, III, Assistant
              Municipal Attorney, and Amy Gurton Mead, Municipal
              Attorney, Juneau, for Appellee City and Borough of Juneau.
              No appearance by Appellees Chris Gilberto and Ann
              Gilberto.

              Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
              and Carney, Justices.

              MAASSEN, Justice.

I.    INTRODUCTION
              A landowner contends that his neighbors’ fence violates two restrictive plat
notes. The neighboring properties are in two different subdivisions, and the landowner
is therefore not bound by the same restrictive plat notes that he seeks to enforce against
his neighbors. The landowner complained about the fence to the Director of Juneau’s
Community Development Department, but the Director responded that the fence was
allowed, citing longstanding policy.
             The landowner appealed to the Planning Commission, which affirmed the
Director’s decision. The landowner next appealed to the Juneau Assembly, which
rejected his appeal for lack of standing. The landowner appealed this decision to the
superior court, which affirmed the Assembly’s reliance on standing as grounds to reject
the appeal. The landowner appeals to us.
             We conclude that the Director’s decision was an appropriate exercise of his
enforcement discretion, not ordinarily subject to judicial review. On that alternative
ground we affirm the superior court’s dismissal of the appeal. We decline to address the
standing issue on which the Assembly and the superior court based their decisions.
II.   FACTS AND PROCEEDINGS
      A.     Facts
             An undeveloped greenbelt buffer runs between Bill Yankee’s property and
the back of Chris and Ann Gilbertos’. The two properties are in different subdivisions
and therefore subject to different covenants: Yankee’s property is in the Nunatak
Terrace Subdivision whereas the Gilbertos’ is in the Montana Creek Subdivision.
             The Gilbertos built a fence along their side of the greenbelt buffer.
According to the Gilbertos, they checked with the Community Development Department
(CDD) of the City and Borough of Juneau (CBJ) before building the fence and were
repeatedly assured that it was allowed. But Yankee — concerned that the fence
interfered with the movement of ducks through the greenbelt — asserted that it violated




                                           -2-                                      7206

two plat notes1 on the recorded plat of the Montana Creek Subdivision applicable to its
southern boundary line, where it adjoins Nunatak Terrace and another subdivision. One
of the plat notes requires a “30 [foot] ‘no-build’ structure setback”; the other requires “no
disturbance to [a] 20 [foot] natural green belt & visual buffer easement.”2
       B.     Proceedings
              Yankee first brought his complaint about the Gilbertos’ fence to the CDD.
The Director’s response, in the form of a four-page letter addressed to Yankee, began by
stating that its purpose was “to clarify the [CDD] policy regarding fences and to formally
notify you of my decision as CDD Director regarding this case.” What followed was a

       1
               A plat is a scale drawing — in this case of a subdivision. A note on that
plat acts as a restrictive covenant. See City and Borough of Juneau Code (CBJ)
§ 49.15.440(4) (March 2013) (renumbered with slight language changes in CBJ
§ 49.15.412(b) (June 2017)) (“When such a condition of approval [of a subdivision’s
final plat] entails a restriction upon the use of all or part of the property being subdivided,
a note specifying such restrictions shall be placed on the face of the plat. Such note shall
constitute a restrictive covenant in favor of the municipality and the public, and shall run
with the land, enforceable against all subsequent owners.”). Many provisions in the 2013
version of the code, in effect when Yankee first complained to the CDD, remain the same
in the current code. We note where the versions differ but for simplicity refer to the CBJ
in the present tense.
       2
            These plat notes summarize conditions that were explained in more detail
by CDD staff during the plat approval process:
              The concept plan must be modified to include a greenbelt and
              visual buffer setback for all lots on the outer perimeter of the
              concept plan site including Montana Creek Road. The
              setback shall provide that no building or structure may be
              located closer than 30 feet to a perimeter lot line and that the
              outermost 20 feet of the setback area must be left in natural
              vegetation and topography. The setback area . . . shall be
              maintained to preserve an effective visual screening along the
              perimeter using vegetation.

                                             -3-                                         7206

description of the subdivisions’ development and an explanation of CBJ’s fence policy
going back “to at least 1999.” The Director explained that the Montana Creek plat notes
were primarily intended to “ensure that existing vegetation would be preserved” in the
greenbelt buffer area so that neighboring properties would be shielded from the new and
denser Montana Creek subdivision; he explained that fences, with some limitations, were
actually consistent with those purposes. The Director’s decision concluded:
                     The fence in this particular case was constructed in
             such a way as to be consistent with the standing CDD policy
             and appears to be of minimal visual impact since it is wire
             and less than five feet tall. The wire fence allows for the
             vegetative buffer to show through unlike other fences that
             might allow for greater privacy. It appears reasonable that
             the property owner would want to denote where his property
             line is and where the neighboring properties begin and to do
             this [in] a manner that does not impair the neighbor’s
             enjoyment of the greenbelt, since the same right is afforded
             to the non-Montana Creek subdivision property owner.
             Yankee appealed the Director’s decision to the CBJ Planning Commission.
The Commission rejected his appeal on its merits, finding that the plat notes were
ambiguous and that Yankee failed to demonstrate that the fence was prohibited. Yankee
next appealed to the CBJ Assembly, which also rejected his appeal, though not on the
merits. The Assembly relied instead on a memorandum from the CBJ Law Department
concluding that Yankee lacked standing to enforce the plat notes because he did not own
property in Montana Creek Subdivision.
             Yankee then appealed to the superior court, which affirmed the Assembly’s
decision that he lacked standing. Yankee appealed to this court.




                                          -4-                                     7206

III.   STANDARD OF REVIEW
             “When the superior court acts as an intermediate court of appeals in an
administrative matter, we independently review the merits of the agency’s decision.”3
Because the scope of appellate jurisdiction “does not ‘implicate special agency expertise
or the determination of fundamental policies within the scope of the agency’s statutory
function,’ we will substitute our independent judgment for that of the agency.”4
             Although courts generally refrain from reviewing an executive agency’s
exercise of discretionary enforcement authority, we have observed that we may review
such an exercise to insure its “conformity with law and that it is not so capricious or
arbitrary as to offend due process.”5
IV.    DISCUSSION
             Yankee’s opening brief in this appeal focused on the issue of standing —
the sole ground on which the Assembly and the superior court declined to hear the merits
of his appeal from the Director’s decision. CBJ, in its appellee’s brief, raised the issue
of subject matter jurisdiction; it characterized the Director’s decision as either (1) an
attempt to adjudicate a private dispute, for which the CDD lacked jurisdiction; (2) a
“policy advice letter” which the CDD had authority to issue but from which there was
no right of appellate review; or (3) a discretionary enforcement decision which the CDD
had authority to make but from which, again, there was no right of appellate review. In
his reply brief Yankee pushed back against the characterization of the Director’s decision

       3
            S. Anchorage Concerned Coalition, Inc. v. Municipality of Anchorage Bd.
of Adjustment, 172 P.3d 768, 771 (Alaska 2007) (citing Williams v. Abood, 53 P.3d 134,
139 (Alaska 2002)).
       4
             Id. (quoting Alaska Pub. Emps. Ass’n v. State, 831 P.2d 1245, 1247 (Alaska
1992)).
       5
              Vick v. Bd. of Elec. Examiners, 626 P.2d 90, 93 (Alaska 1981) (citing K & L
Distribs., Inc. v. Murkowski, 486 P.2d 351, 358 (Alaska 1971)).
                                           -5-                                      7206

as an “advisory opinion” (or “advice letter”), contending that although the decision
“clarifie[d] the CDD fence policy,” in doing so it resolved Yankee’s complaint “pursuant
to the Director’s enforcement authority.”
             We agree with CBJ that the dispositive issue is one of reviewability. We
hold that the Director’s decision was an appropriate exercise of his enforcement
discretion that we should not review. In reaching this holding we do not find it necessary
to consider whether the decision was properly appealable within the CBJ administrative
hierarchy — from the CDD to the Planning Commission to the Assembly — nor do we
decide the standing issue that the superior court found dispositive. We focus only on
whether a discretionary enforcement decision, with whatever layers of review the
executive has given it, should also be subject to our review.
      A.	    The Director Has Enforcement Authority Over Matters Relevant To
             Yankee’s Complaint.
             The Director’s consideration of the case was apparently prompted first by
communications from the Gilbertos, who, after receiving complaints from Yankee,
sought reassurances from the CDD that their fence was allowed. The CDD then heard
from Yankee himself by telephone. According to a CDD planner’s record of the
conversation, Yankee relied on the Montana Creek plat notes to support his position that
the fence should “come down ideally” and “[i]f that can’t be done, then he’d like holes
cut into the fence so that nesting ducks are able to travel back and forth over the ponds
between the two lots.” In the context of the CDD’s authority, as explained below, we
view Yankee’s request as one for enforcement: a request that the CDD, by whatever
means, require the Gilbertos to remove or significantly alter their fence.6


      6
              On appeal Yankee contends that he was seeking a change in CBJ policy and
that he recognized that either he or the CDD would have to follow up any policy change
with an enforcement action directed specifically against the Gilbertos’ fence. At the
                                                                         (continued...)
                                           -6-	                                   7206

              To appropriately categorize the Director’s response, we must first review
the sorts of decisions the Director is authorized to make. The City and Borough of
Juneau Code § 49.10.500 authorizes the Director “to carry out all of the duties as set
forth in [title 49] and title 19.” We find no relevant authority in title 19 (“Building
Regulations”) and therefore look to title 49. As relevant here, that title gives the Director
authority in three main areas: (1) permitting;7 (2) approval of “minor subdivisions” and
zoning districts;8 and (3) enforcement.9 It is evident that the Director’s decision on
Yankee’s complaint was not grounded in his permitting authority.                  Although
CBJ § 49.15.310 grants such authority for individual “minor developments,” fences
under six feet, like the Gilbertos’ five-foot fence, do not require a permit under CDD
policy. Nor did Yankee’s complaint implicate the Director’s approval authority for
“minor subdivisions” and zoning districts.10 We conclude that it was the Director’s
enforcement authority that allowed him to consider and respond to Yankee’s complaint.




       6
        (...continued)
time, however, Yankee appeared to be asking the CDD to take immediate action. The
one relevant writing of his that is in our record and predates the Director’s decision —
an email to the Director — states that he is waiting for the “the decision on said fence”
but does not understand “your office allowing this fence to remain in place (clearly a
violation of subdivision plat) while your staff conducts an open-ended study looking for
any criteria to ‘authorize’ this fence,” and that he is “again requesting that this ‘setback’
be honored, while the above research/study is conducted.” This is consistent with the
CDD planner’s record that “Mr. Yankee wants the fence to come down ideally.”
       7
              CBJ § 49.15.310.
       8
              CBJ § 49.10.510.
       9
              CBJ §§ 49.10.600–.660.
       10
              See CBJ § 49.10.510.

                                             -7-                                       7206

              As Yankee asserts, the Director’s enforcement authority extends to potential
plat note violations,11 for which the law provides a variety of enforcement tools.12 The
Director thus had the authority to hear and respond to Yankee’s complaint. Indeed,
Yankee agrees that the Director’s decision of his complaint was an exercise of
enforcement authority, though he disputes the conclusion that it should therefore escape
judicial review.13 But as discussed in the next section, we disagree. The Director’s
decision not to take enforcement action against the Gilbertos’ fence was a discretionary
one that is not ordinarily subject to judicial review.
       B.     We Decline To Review The Director’s Decision.
              CBJ argues that the Director’s decision — as an “advice letter” on CDD’s
enforcement policy — was not in fact appealable within the CBJ administrative
hierarchy. Yankee points to CBJ ordinances that provide for appeals as a matter of right




       11
             See CBJ § 49.15.440(4) (March 2013) (renumbered with slight language
changes in CBJ § 49.15.412(b) (June 2017)) (“Any such restrictive covenant may be
enforced against the subdivider or any subsequent owner by the municipality by
injunction or other appropriate action, in the same manner as a permit or permit
condition, pursuant to CBJ 49.10.600–660 . . . .”).
       12
             See CBJ § 49.10.600(a) (emergency powers); CBJ § 49.10.620(a)
(compliance order); CBJ § 49.10.630 (civil action); CBJ § 49.10.640 (criminal
penalties); CBJ § 49.10.650 (inspection warrant).
       13
              To distinguish the Director’s decision from a statement of CBJ policy —
an unreviewable “advisory opinion” — Yankee argues, for example, that “[t]he Decision
clarifies the CDD fence policy resolving, pursuant to the Director’s enforcement
authority, the complaint brought by Mr. Yankee”; he also faults CBJ for not citing cases
in its appellee’s brief holding that “subject matter jurisdiction [was] lacking when an
administrative official with jurisdiction over enforcement exercised th[at] enforcement
authority.” (Emphasis added.)

                                            -8-                                     7206

to the Commission and then to the Assembly.14 But whether CBJ could and did
authorize various levels of administrative review of the Director’s decision is of no
consequence to us if the decision is of a type that is not ordinarily subject to further
appellate review in the courts.
             As explained above, we view the Director’s decision as an exercise of his
enforcement authority, that is, a decision not to act on Yankee’s complaint. Generally,
courts decline to review executive-branch decisions not to prosecute an individual or not
to enforce a law under particular circumstances. While issues of enforcement discretion
arise more often in the criminal context,15 our cases provide a framework for considering
them in the civil context as well. In Public Defender Agency v. Superior Court, Third
Judicial District, we considered whether the superior court could order the attorney
general to prosecute a civil contempt proceeding for a parent’s failure to pay child
support.16 We held it could not.17 We observed that under the common law the attorney
general’s “discretionary control over the legal business of the state, both civil and




      14
              See CBJ § 49.20.110(a) (“Review by the commission of a decision of the
director[] may be requested by filing a notice of appeal . . . . The appeal shall be heard
unless it presents only minor or routine issues . . . .”); CBJ § 49.20.120 (“Appeal to the
assembly is a matter of right.”).
      15
              See, e.g., State v. District Court, 53 P.3d 629, 631 (Alaska App. 2002)
(“Both the Alaska Supreme Court and [the Court of Appeals] have declared that charging
decisions are committed to the discretion of the executive branch; so long as these
decisions are exercised within constitutional bounds, they are not subject to judicial
control or review.”).
      16
             534 P.2d 947, 948 (Alaska 1975).
      17
             Id. at 950-51.

                                           -9-                                      7206

criminal, includes the initiation, prosecution, and disposition of cases.”18 We adopted
the rule that “[w]hen an act is committed to executive discretion, the exercise of that
discretion within constitutional bounds is not subject to the control or review of the
courts,” because “[t]o interfere with that discretion would be a violation of the doctrine
of separation of powers.”19 We concluded that the superior court’s order requiring the
attorney general to prosecute a particular case of nonsupport “overstepped this line”:
“although we have jurisdiction to entertain this case and to find, as we have, the
existence of legal authority [for the attorney general to bring the nonsupport action], we
do not have power to control the exercise of the [a]ttorney [g]eneral’s discretion as to
whether he will take action in any particular cases of contempt for non-support.”20
             We addressed a similar issue in Vick v. Board of Electrical Examiners,
where we considered the scope of appellate authority over a licensing board’s decision
— based on the recommendation of an investigative division — not to commence a
license revocation proceeding.21 We noted that “we will sometimes inquire into the basis
of an agency’s decision to assure that it is in conformity with law and that it is not so




      18
             Id.
      19
             Id.
      20
              Id. at 951; see also Ross v. U.S. Attorney’s Office, 511 F.2d 524, 525 (9th
Cir. 1975) (per curiam) (recognizing the “well-settled principle that mandamus does not
lie to compel a United States District Attorney to perform a discretionary act”); State v.
Williams, 356 P.3d 804, 808 (Alaska App. 2015) (“The decision whether to actively
participate in the prosecution of any given case is discretionary on the part of the
executive branch.” (citing Public Defender, 534 P.2d at 950-51)).
      21
             626 P.2d 90, 91-92 (Alaska 1981).

                                          -10-                                      7206

capricious or arbitrary as to offend due process,”22 but we also observed that “the extent
of judicial review of discretionary determinations of an agency must necessarily vary
with the subject matter.”23 That is, “[w]hen a matter falls within an area traditionally
recognized as within an agency’s discretionary power, courts are less inclined to intrude
than when the agency has acted in a novel or questionable fashion.”24 We explained:
                    When an agency functions to protect the public in
             general, as contrasted with providing a forum for the
             determination of private disputes, the agency normally
             exercises its discretion in deciding whether formal
             proceedings should be commenced.                In matters of
             occupational licensure the decision to initiate proceedings for
             revocation or suspension is comparable to the function of a
             public prosecutor in deciding whether to file a complaint.
             Questions of law and fact, of policy, of practicality, and of
             the allocation of an agency’s resources all come into play in
             making such a decision. The weighing of these elements is
             the very essence of what is meant when one speaks of an
             agency exercising its discretion.[25]
Notwithstanding this discussion of the limits on appellate review, we considered under
the abuse of discretion standard the appellant’s claims in Vick that the licensing board
had failed to pursue certain relevant information; we concluded that “the board and the




      22
            Id. at 93 (citing K & L Distribs., Inc. v. Murkowski, 486 P.2d 351, 358
(Alaska 1971)).
      23
             Id.
      24
             Id.
      25
             Id. (footnote omitted).

                                          -11-                                      7206

division did consider the matters put before them and that no abuse of discretion has been
demonstrated.”26
              A few years later the United States Supreme Court held in Heckler v.
Chaney that “an agency’s decision not to prosecute or enforce, whether through civil or
criminal process, is a decision generally committed to an agency’s absolute discretion.”27
As we did in Vick, the Court highlighted the “complicated balancing of a number of
factors which are peculiarly within [the agency’s] expertise.”28 The Court also observed
“that when an agency refuses to act it generally does not exercise its coercive power over
an individual’s liberty or property rights, and thus does not infringe upon areas that
courts often are called upon to protect”; whereas “when an agency does act to enforce,
that action itself provides a focus for judicial review, inasmuch as the agency must have
exercised its power in some manner.”29 But the Heckler Court noted that not every
enforcement decision by an executive agency is by definition unreviewable: the
legislature could empower courts to review such decisions “either by setting substantive
priorities, or by otherwise circumscribing an agency’s power to discriminate among
issues or cases it will pursue.”30



       26
              Id.
       27
              470 U.S. 821, 831 (1985) (citing cases).
       28
              Id.
       29
              Id. at 832 (emphasis in original).
       30
               Id. at 833; see also Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d
375, 380 (2d Cir. 1973) (“In the absence of statutorily defined standards governing
reviewability, or regulatory or statutory policies of prosecution, the problems inherent
in the task of supervising prosecutorial decisions do not lend themselves to resolution by
the judiciary.”).

                                            -12-                                       7206

             As suggested in Heckler, we have reviewed agency decisions when the
legislature has statutorily narrowed or eliminated the agency’s enforcement discretion.
In State, Department of Fish &Game, Sport Fish Division v. Meyer, we reviewed a case-
closing order of the Alaska State Commission for Human Rights, concluding that the
agency’s compliance with the Human Rights Act did not “involve the exercise of
prosecutorial discretion at all.”31 The Commission’s case-closing decisions were
reviewable because “the [Human Rights Act] grants no discretion to discontinue the
process once the investigator finds substantial evidence of discrimination, unlike the
statutes at issue in Vick and Heckler.”32



      31
              906 P.2d 1365, 1373-74 (Alaska 1995) (noting the compulsory language
of the agency’s statutory mandate and observing that “if the Commission wants its staff
to have this discretionary authority, it must be obtained from the legislature, not the
judiciary”), superseded by statute, AS 18.80.112(b), as stated in Huit v. Ashwater Burns,
Inc., 372 P.3d 904, 914 n.52 (Alaska 2016).
      32
              See id. at 1373; see also Toliver v. Alaska State Comm’n for Human Rights,
279 P.3d 619, 623-24 (Alaska 2012) (highlighting the mandatory language in the Human
Rights Act regarding the Commission’s investigations). We also review for abuse of
discretion Bar Counsel’s decision to close a grievance investigation or to not pursue a
complaint. See McGee v. Alaska Bar Ass’n, 353 P.3d 350, 352, 354 (Alaska 2015) (“Bar
Counsel’s decision to close McGee’s grievance without a formal investigation was not
arbitrary or capricious, and we see no breakdown in the grievance process warranting
interference with Bar Counsel’s decision.”); Anderson v. Alaska Bar Ass’n, 91 P.3d 271,
272 (Alaska 2004) (“[W]e conclude that Bar Counsel did not abuse his discretion in
declining to accept the grievance for investigation.”). But attorney discipline cases are
much different from ordinary administrative appeals due to our inherent authority to
regulate the practice of law; we review attorney discipline cases directly. See McGee,
353 P.3d at 351 (“In Anderson v. Alaska Bar Ass’n we held that there was no right to
appeal grievance-closing decisions to the superior court, but . . . we would directly
review such decisions.”); Anderson, 91 P.3d at 272 (“[G]rievance-closing decisions
under Bar Rule 22(a) may, upon timely request of a complainant, be reviewed by this
court.”).

                                            -13-                                   7206

              Our review of these cases convinces us that we should not review the CDD
Director’s decision in this case. First, unlike the Human Rights Act at issue in Meyer,33
the CBJ grants the CDD and its Director broad discretion in determining whether to take
action regarding potential violations of the land use code.34 Thus even if we were
convinced that the Director’s interpretation of the plat notes was incorrect, we would not
be in a position to second-guess his discretionary exercise of enforcement authority;35
whether to take action against the Gilbertos’ fence would still depend on “[q]uestions of
. . . policy, of practicality, and of the allocation of [the] agency’s resources,” and “[t]he
weighing of these elements is the very essence of what is meant when one speaks of an
agency exercising its discretion.”36 Furthermore, we recognized in Vick that this


       33
              906 P.2d at 1372-74.
       34
                See CBJ § 49.10.600(a) (“When the department finds . . . that a person is
causing . . . a condition or activity which, in the judgment of the department, presents an
imminent or present danger to the health, safety or welfare of the people . . . , and it
appears to be prejudicial . . . to delay action until an opportunity for a hearing can be
provided, the department, without prior hearing, may order that person by notice to
discontinue, abate or alleviate the condition or activity.” (emphasis added)); CBJ
§ 49.10.620(a) (“When, in the opinion of the department, a person is violating . . . a
provision of this title, . . . the department may notify the person of its determination by
personal service, or certified mail.” (emphasis added)).
       35
               See Falls Rd. Cmty. Ass’n v. Baltimore Cty., 85 A.3d 185, 201-02 (Md.
2014) (holding that County could not be required to pursue zoning enforcement action,
due to its discretionary nature, and analogizing to the discretion “of a State’s Attorney
who must decide which criminal cases to prosecute”).
       36
               Meyer, 906 P.2d at 1373 (quoting Vick v. Bd. of Elec. Exam’rs, 626 P.2d
90, 93 (Alaska 1981)); cf. Newman v. United States, 382 F.2d 479, 482 (D.C. Cir. 1967)
(explaining that “while [prosecutorial] discretion is subject to abuse or misuse just as is
judicial discretion, deviations from [a prosecutor’s] duty as an agent of the Executive are
to be dealt with by his superiors” and “no court has any jurisdiction to inquire into or
                                                                              (continued...)

                                            -14-                                       7206

enforcement discretion is due more judicial deference “[w]hen an agency functions to
protect the public in general, as contrasted with providing a forum for the determination
of private disputes”;37 such is the case here, as the CDD does not provide an adjudicative
forum. And Yankee does not dispute that the Director’s decision was “within an area
traditionally recognized as within [the CDD’s] discretionary power,” meaning that we
“are less inclined to intrude than when the agency has acted in a novel or questionable
fashion.”38
              It is also significant that the Director’s decision was not an exercise of
coercive power, but rather a decision to continue the status quo; as noted in Heckler v.
Cheney, the lack of an “action” gives the courts less of “a focus for judicial review,
inasmuch as the agency must have exercised its power in some manner.”39 Furthermore,
we do not see, nor does Yankee argue, that the Director’s decision was so arbitrary or
capricious as to implicate due process concerns.40 And importantly, while the appellant
in Vick lacked another vehicle for relief outside of the administrative appeal process,41
Yankee has another option — a direct suit against the Gilbertos in superior court, in


      36
        (...continued)
review [a prosecutor’s] decision”); James Vorenberg, Decent Restraint of Prosecutorial
Power, 94 HARV. L. REV. 1521, 1546 (1981) (“Courts often justify their refusal to review
prosecutorial discretion on the ground that separation-of-powers concerns prohibit such
review.”).
      37
              626 P.2d at 93.
      38
              See id.
      39
              470 U.S. 821, 832 (1985).
      40
              See Vick, 626 P.2d at 93.
      41
             Id. at 92 (noting appellant’s concession “that the final decision to revoke
or suspend a license lies within the discretion of the [Board of Electrical Examiners]”).

                                          -15-                                      7206

which he can litigate his standing to enforce the Montana Creek plat notes and whether
his interpretation of those notes is the correct one.42
              We conclude, therefore, that the Director’s decision in this case, as a
discretionary exercise of his enforcement authority, should not be subject to judicial
review.
V.     CONCLUSION
              We AFFIRM on other grounds the superior court’s dismissal of Yankee’s
appeal.




       42
             CBJ § 49.15.440(4) (March 2013) (renumbered with slight language
changes in CBJ § 49.15.415(b) ( June 2017)) (“Any such restrictive covenant may be
enforced against the subdivider or any subsequent owner . . . by any specifically affected
member of the public.”).

                                            -16-                                    7206

