Full Opinion

2026 WL 3179609 Only the Westlaw citation is currently available. NOTICE: THIS DECISION DOES NOT SERVE AS PRECEDENT. THE CASE WAS ENTERED IN THE WESTLAW DATABASE BEFORE THE TIME FOR REHEARING HAD EXPIRED. IT IS POSSIBLE THAT REHEARING HAS BEEN SOUGHT, GRANTED OR DENIED. Supreme Court of Alaska. BEACHCOMBER, LLC, Appellant, v. HANS BILBEN, PHILIP BRNA, GEORGE KRIER, LAWRENCE OLIVER, SHIRLEY GRUBER, TODD BAREMAN, JOSEPH SPARKMAN, VICKEY HODNIK, GARY CUTLIP, JOHN GIRTON, LINDA BRUCE, STEVE THOMPSON, LYNN WHITMORE, DONALD HORTON, LORI HORTON, JAMES GORMAN, LINDA STEVENS, GARY SHERIDAN, EILEEN SHERIDAN, THOMAS BROOK, JOSHUA ELMALEH, CHRISTINE ELMALEH, ANGELA ROLAND, MICHAEL BRANTLEY, TERESA JACOBSON, DAVID GREGORY, PETE KINEEN, LAUREN ISENHOUR, ALLISON PAPAROA, DANICA HIGH, GINA DEBARDELABEN, ANN G. CLINE, RICHARD CLINE, LINDA PATRICK, MIKE PATRICK, MARIE J. CARLTON, RICHARD D. CARLTON, DONALD L. HORTON III, XOCHITL LOPEZ-AYALA, JEANNE BILBEN, ARAYA OLIVER, and KENAI PENINSULA BOROUGH, Appellees. Supreme Court Nos. S-19091, S-19092 October 23, 2026 Superior Court No. 3KN-20-00034 CI/3KN-23-00004 CI Appeal in File No. S-19091 from the Superior Court of the State of Alaska, Third Judicial District, Jason M. Gist, Judge. Appeal in File No. 19092 from the Superior Court of the State of Alaska, Third Judicial District, Lance Joanis, Judge. Attorneys and Law Firms Appearances: Stacey C. Stone, Holmes Weddle Barcott, P.C., Anchorage, for Appellant. Katherine Elsner, Ehrhardt, Elsner Cooley, Kenai, for Appellees Hans Bilben et al. A. Walker Steinhage, Deputy Borough Attorney, Soldotna, for Appellee Kenai Peninsula Borough. Before: Carney, Chief Justice, and Borghesan, Henderson, Pate, and Oravec, Justices. OPINION HENDERSON, Justice. I. INTRODUCTION Star page 1 *1 A company sought a conditional land use permit to operate a gravel pit mine on its rural property. The borough's planning commission denied the application based on its interpretation of the borough code. A series of appeals and remands followed, all centered around the question of whether the code provides the commission with discretion to deny conditional land use permits that comply with certain conditions. The company appeals the final denial of its application, along with two underlying superior court decisions. It argues that the commission did not have discretion to deny its application under the code, and that the superior court's decisions to the contrary should be overturned. It also raises several procedural challenges to the denial. Because we interpret the code as providing the commission with discretion to deny conditional land use permits that it determines do not adequately minimize disturbances and impacts, and because we see no merit in the company's procedural arguments, we affirm the commission's denial and the related superior court decisions. II. FACTS AND PROCEEDINGS A. Facts Beachcomber, LLC (Beachcomber) is a limited liability company that owns a 41.72-acre property in Anchor Point, which is located in the rural district of the Kenai Peninsula Borough (Borough). 1 In 2018 Beachcomber applied for a conditional land use permit (CLUP) to operate a gravel pit mine on roughly 27 acres of its property. The Borough code requires landowners in its rural district to obtain CLUPs for certain uses of land, including material excavation. 2 Landowners can submit an application for a CLUP with the Borough, which is evaluated by the Borough planning commission. 3 Applications for excavation sites must meet six standards, which include minimizing noise and visual impacts on neighboring properties. 4 The code also lists 15 conditions that the Commission may require an applicant to meet, such as installing a buffer zone around the parcel boundaries to provide screening from noise and visual disturbances. 5 The code states that “only” the permit conditions listed in the code “may be imposed” on a CLUP application in order to bring the application in line with the impact standards. 6 B. Proceedings 1. 2018 denial of Beachcomber's CLUP application Star page 2 *2 The Commission held a public hearing in July 2018 to address Beachcomber's CLUP application. Nearly 30 community members spoke against the application, many raising concerns about dust, noise, and visual impacts. The Commission also received dozens of written comments and two petitions opposing the application. The commissioners deliberated on the record. Several commissioners stated that because of the “unique topography” of Beachcomber's property, described as a crater or amphitheater, they believed that berms or vegetation buffers would not minimize noise disturbance to neighboring properties as required by the impact standards. One commissioner stated that he thought the Commission was required to approve the application, because he believed the code did not give the Commission discretion to deny an application that complies with all the permit conditions. The Commission nonetheless voted 6-3 to deny Beachcomber's application, finding that no buffer or berm could “sufficiently reduce[ ]” noise and visual effects to comply with the impact standards. 2. Appeal and remand to Commission Beachcomber appealed the denial to a Borough hearing officer. 7 The Borough joined the appeal on Beachcomber's side, arguing that the Commission had misinterpreted its discretion and that it in fact had “[l]ittle flexibility” to deny a CLUP application under the code if the applicant satisfied all permissible permit conditions. The hearing officer remanded based on her interpretation of the code. She determined that the code does not give the Commission discretion to deny a CLUP application that complies with all permit conditions, but instead provides the Commission “only ... authority to impose [the] conditions and ensure that any application complie[s] with the application requirements.” She concluded that the Commission had therefore “exceeded the scope of its authority in denying the permit based upon its determination that the conditions would not afford adequate protection from noise and visual blight.” She instructed the Commission to reevaluate Beachcomber's application under this interpretation of the code and to issue more robust findings about whether Beachcomber had complied with the permit conditions. 3. 2019 Commission decision granting Beachcomber's CLUP application On remand, the Commission held additional public hearings to address Beachcomber's CLUP application. Once again, many community members opposed the application. The Commission took public comments at the first two hearings, receiving testimony from more than forty people. The Commission heard repeated testimony that there would be no way to mitigate noise and visual impacts on neighbors because the proposed extraction site sat in a natural amphitheater that magnified sound and would make visual buffers ineffective. It also received numerous written comments, as well as photographs and topographic maps of the proposed site and surrounding properties. Both Beachcomber and opponents to its application also submitted LIDAR profiles showing the “contours and elevations of the property” in relation to surrounding properties. 8 The creator of some of those images explained to the Commission that they were made with the Borough's data and that the technology allowed for a “side elevation view” of the properties. Star page 3 *3 The Commission approved Beachcomber's CLUP application in June 2019. It found that Beachcomber had complied with all permit conditions that the Commission could impose, which necessarily meant that the application met the impact standards under the hearing officer's interpretation of the code. 4. Superior court reversal of 2019 Commission decision Hans Bilben, a neighboring resident, and several other members of the community around Beachcomber's property (collectively Bilben), appealed the 2019 Commission decision to another hearing officer. The Borough joined Beachcomber in opposing Bilben, arguing again that the Commission had limited discretion to deny CLUP applications. 9 The hearing officer affirmed the Commission's decision. Bilben appealed to the superior court. He argued that the hearing officers and the Commission had all misinterpreted the code as limiting the Commission's discretion. He asserted that the code in fact grants the Commission discretion to deny a CLUP application that complies with the permit conditions if the Commission finds that the application still does not meet the impact standards. In September 2021 the superior court reversed the 2019 Commission decision. It applied its independent judgment 10 to interpret the code and held that the code allows the Commission to “deny[ ] a CLUP when it finds that the conditions ... will not satisfy the [impact] standards.” It reasoned that remand was appropriate because the Commission was operating under the “incorrect assumption” that it had no discretion when it granted Beachcomber's application in 2019, so it had not made adequate findings regarding whether Beachcomber's application satisfied the impact standards. The court instructed that if, on remand, the Commission were to find that no combination of permit conditions could “adequately minimize visual and noise impacts to the standards set forth” in the code, then it had the authority to deny the CLUP application. 5. 2022 Commission decision denying Beachcomber's CLUP application On remand, Bilben requested that the Commission hold additional public hearings, which Beachcomber opposed. The Commission opted to reconsider the application in an adjudicative session without taking additional public comment. In March 2022 the Commission voted 5-2 to deny Beachcomber's application. 11 In its denial the Commission found that “even when all the Permit Conditions are imposed under [the code],” the application could not meet the standard of “[m]inimiz[ing] noise disturbance to other properties” because “the unique amphitheater-like natural topography of the area” caused sound to carry to neighboring properties in a manner that buffers would be unable to mitigate. It also found that the application could not meet the standard of “[m]inimiz[ing] visual impacts.” It stated that topographic maps, photographs, and LIDAR images showed that berms would “provide very little, if any, minimization of the visual impact” to neighboring properties. It concluded that “as a matter of law ... the application [did] not meet at least one of the standards set forth in KPB 21.29.040,” and it therefore denied the application. 6. Superior court affirmance of 2022 Commission decision Star page 4 *4 Beachcomber appealed to a hearing officer, who affirmed the Commission's decision. Beachcomber then appealed to the superior court. It argued that the code did not grant the Commission discretion to deny its application and that the denial violated the requirements of the code because it was unsupported by substantial evidence. In April 2024 the superior court affirmed the hearing officer decision and the 2022 Commission decision. It declined to revisit the 2021 superior court decision that interpreted the code as granting discretion to the Commission, stating that “lower courts are bound by an appellate judge's decision, and subsequent appeals can't litigate the same issue.” It held that substantial evidence supported the 2022 Commission decision, concluding that the Commission's consideration of public input and LIDAR data was not improper. 7. Beachcomber's appeal Beachcomber appeals both the 2021 and 2024 superior court decisions, arguing that both should be overturned. It also urges us to overturn the Commission's 2022 denial of Beachcomber's CLUP application, leaving in place the 2019 decision granting the permit. Bilben asks us to affirm the Commission's 2022 denial and the underlying superior court decisions. The Borough, also an appellee, argues that we should sustain the 2022 denial as a “faithful[ ] appli[cation] [of] the law of the case as supplied by” the superior court in its 2021 decision. III. STANDARD OF REVIEW “When the superior court acts as an intermediate court of appeal in administrative cases, we examine the merits of the agency's decision directly.” 12 We will generally accept a zoning board's interpretation of a zoning ordinance if “there is a reasonable basis for the meaning given by the board,” 13 but if a question of statutory interpretation does not involve the board's expertise, we will substitute our own judgment. 14 When applying our independent judgment to a borough code, we interpret it “according to reason, practicality, and common sense, considering the meaning of the [code's] language, its legislative history, and its purpose.” 15 “[W]e apply ‘the substantial evidence test to questions of fact,’ ” 16 merely noting the presence of evidence rather than evaluating its strength or “choos[ing] between competing inferences.” 17 IV. DISCUSSION Beachcomber's main argument on appeal is that both superior courts erred by relying on an interpretation of the code giving the Commission discretion to deny CLUP applications that meet all permit conditions. It urges us to reverse both superior court decisions as well as the 2022 Commission decision denying its application. It also raises several procedural challenges to the Commission's 2022 denial, arguing that the Commission considered improper evidence, violated the Administrative Procedure Act (APA), and failed to provide due process. Star page 5 *5 Because we disagree with Beachcomber's interpretation of the plain text of the code, and because we see no merit in its procedural challenges, we affirm the Commission's 2022 denial of Beachcomber's application and both underlying superior court decisions. 18 A. The Commission Had Discretion To Deny Beachcomber's Application. 1. Both reasonable basis review and de novo review lead us to the same conclusion. The parties disagree as to the scope of the Commission's discretion to deny CLUP applications under the code. This is akin to a question of statutory interpretation that would normally trigger exercise of our independent judgment. 19 However, the parties argue that we could use reasonable basis review here, because we apply that deferential standard to a zoning board's interpretation of a zoning ordinance if it implicates the zoning board's expertise. 20 We question whether the Commission's interpretation of this aspect of the code involves its “expertise” or “specialized knowledge” such that deferential review would in fact be appropriate here. 21 But we need not definitively decide which standard of review applies in this case because either reasonable basis or de novo review yields the same result. If we were to defer to any of the three Commission decisions, it would be to the 2018 denial of Beachcomber's application, because the Commission's latter two decisions were guided by the hearing officers’ and superior court's interpretations of the code such that those two decisions did not reflect the Commission's “specialized knowledge and expertise.” 22 In its 2018 decision, the Commission interpreted the code as giving it discretion to deny applications that do not adequately minimize noise and visual impacts. That interpretation of the code is reasonable, 23 and it is the same conclusion we reach when we apply our independent judgment. 2. The Commission has discretion to deny CLUP applications under a plain reading of the code. Star page 6 *6 When applying our independent judgment to a question of statutory interpretation, we start with “the text and its plain meaning.” 24 We take a “sliding-scale approach” whereby the plainer the language the more convincing the evidence of contrary legislative purpose must be in order to deviate from the meaning conveyed by the language. 25 Here, when taken in context, the plain language of the Borough code suggests that the Commission has discretion to deny CLUP applications that it determines do not adequately minimize disturbances and impacts. The section of the code primarily at issue is former KPB 21.29.040 (Section 40), which requires all CLUP applications to meet the standards of “minimiz[ing] noise disturbance” and “visual impacts” in order to be approved by the Commission. 26 Crucially, Section 40 states that “[o]nly the conditions set forth in KPB 21.29.050 may be imposed to meet these standards.” 27 Former KPB 21.29.050 (Section 50) details the permit conditions the Commission may impose, including certain types of buffer zones to provide visual and noise screening. 28 Beachcomber argues that an application that satisfies the permit conditions by definition meets the impact standards, and the Commission is bound to approve it. Read in isolation, Section 40 might support Beachcomber's interpretation. The word “only” clearly limits the conditions the Commission can impose on an applicant, and it could logically follow that once an applicant meets all the imposed conditions, they have necessarily met the impact standards of minimizing noise and visual effects such that a permit must be granted. 29 But we must “interpret each part or section of a [law] with every other part or section, so as to create a harmonious whole.” 30 The larger context of the code suggests that the Commission has some discretion regarding CLUP applications. In the section of code laying out the process for obtaining a CLUP, the code clearly vests the Commission with the overall role of assessing whether a CLUP application meets the standards outlined in Section 40. 31 It requires the Commission to hold a public hearing, after which it “shall either approve, modify[,] or disapprove” the application. 32 In order to approve an application, it “must find at a minimum that the proposed activity complies with the requirements of [the code]” including the standards laid out in Section 40. 33 And Section 50, which lists permit conditions the Commission may impose so that applications meet the impact standards, also vests the Commission with at least some discretion to judge the effectiveness of the available conditions and to choose which ones to impose. 34 For instance, it offers three options for creating “buffer zone[s]” and notes that the buffer “shall be of sufficient height and density to provide visual and noise screening of the proposed use as deemed appropriate by the planning commission.” 35 Finally, KPB 21.29.050(A)(14) provides that additional “[v]oluntary permit conditions ... may be included in the permit upon agreement of the permittee and approval of the [C]ommission,” if the Commission finds that they would be in the best interest of the borough and surrounding property owners. 36 Star page 7 *7 Taken as a whole, the code charges the Commission with determining, based on all the evidence, what level of screening will be adequate to meet the impact standards of minimizing noise and visual effects in a given situation. 37 It certainly limits the types of buffers the Commission can affirmatively require of an applicant. 38 But it does not expressly limit the Commission's power to decide that no combination of the available conditions could minimize noise and visual impacts under extreme circumstances. 39 In other words, as the 2021 superior court put it: [T]he Commission is specifically tasked with determining the effectiveness of the conditions that are to be imposed and whether they will meet the standards set forth in KPB 21.29.040. If after judging the effectiveness of the potential conditions in its toolbox under KPB 21.29.050(A)(2) the Commission finds that no combination of buffers could be ‘deem[ed] appropriate’ to satisfy the standards set forth in KPB 21.29.040, the Commission is not required to approve the CLUP nonetheless. This reading aligns with the stated purpose of the impact standards, which “are intended to protect against ... noise and visual impacts” on adjacent properties. 40 The fact that the applicant and the Commission may agree on “[v]oluntary permit conditions” also supports this reading. 41 There would be little motivation for an applicant to agree to voluntary conditions if the Commission was bound to approve any applications that met the baseline conditions. The superior court also wrote that if “the Commission finds that no conditions ... could adequately minimize visual and noise impacts to the standards set forth in KPB 21.29.040, then it may deny the CLUP.” (Emphasis added.) Beachcomber argues that the superior court improperly “add[ed] the word ‘adequately’ ” to the code. We disagree. The superior court's use of the word “adequately” appropriately characterized the Commission's task in determining whether permit conditions will be effective at minimizing impacts. Beachcomber's contrary interpretation of the code would lead to the improbable result that the Commission would have to approve the applications that would have the most negative impacts, which could not be meaningfully reduced by the permit conditions the Commission is able to impose. In fact, under Beachcomber's reading, the Commission's only options when buffers would not effectively mitigate noise or visual impacts would be to nonetheless impose those ineffective conditions or to waive the buffer requirements altogether. 42 This interpretation defies common sense. 43 The code is expressly concerned with reducing noise and visual effects on neighboring landowners, 44 and is structured to minimize such effects; we interpret it to allow rejection of applications that threaten to create noise and visual impacts that cannot be mitigated. Star page 8 *8 We note that if the Borough Assembly had intended to require the Commission to formulaically approve any application that satisfies the permit conditions, it could easily have said so. 45 Instead, it chose to limit the permit conditions that the Commission can impose on an applicant, but not to provide that a permit satisfying those conditions inherently meets the impact standards. This leaves room for the Commission to decide that the permit conditions will be inadequate to satisfy the impact standards in some situations. And while Beachcomber argues that interpreting the code this way gives the Commission “unfettered discretion” to deny permit applications for any reason, we observe that the Commission is still bound to support any permit denial with “written findings” demonstrating that its decision is backed by “substantial evidence” — and that parties have a right to appeal denials and argue that they are not grounded in the code. 46 We conclude that under the plain text of the code, if there is substantial evidence that an application which complies with the permit conditions does not adequately minimize noise disturbance and visual impacts, the Commission may deny it. 47 3. The legislative history does not compel a different interpretation of the code's meaning. We will apply the plain meaning of the code “absent convincing evidence that the legislature intended a different result.” 48 The legislative history of this section of the code lacks such convincing evidence. The only history to which Beachcomber points is a series of changes in the code between 1996 and 2006 which it argues systematically narrowed the Commission's discretion. 49 While we agree that the changes in the code reduced the tools available to the Commission, we do not agree that those changes evince a clear intent to altogether curtail the Commission's discretion. The 1996 version of the code tasked the Commission with finding “at a minimum” that an application would “not be detrimental to the public welfare [or] injurious to other property in the area.” 50 It did not limit the Commission to imposing only certain permit conditions. 51 In 1999, the Assembly changed the Commission's mandate to determining whether an application “complies with the requirements” provided in the code, 52 and it added specific standards each application must meet, which included detailed requirements about aquifer disturbance. 53 It still did not limit the Commission to imposing certain conditions. 54 It was in 2006 that the Assembly added the limiting language that “[o]nly the conditions set forth in KPB 21.29.050 may be imposed to meet these standards.” 55 It also amended the standards each application must achieve to meet more general goals, such as minimizing noise disturbance and visual impacts. 56 The 2006 ordinance indicated that the new version of the code was intended to better address “concerns about dust, noise, and aesthetics” and “facilitate a reduction in the negative secondary impacts of material sites.” 57 Star page 9 *9 Beachcomber suggests that the 2006 changes reduced the Commission's role to a “largely formulaic” one. We disagree. Nothing about the amendments to the code between 1996 and 2006 begs the conclusion that the Assembly intended to remove the Commission's discretion altogether. Beachcomber's argument rests almost entirely on its interpretation of the code's language, and it points to no affirmative evidence in either the Assembly or the Commission meetings demonstrating that the drafters intended to require the Commission to approve any application that met the minimum conditions. 58 We agree with the 2021 superior court decision that while the code may “significantly favor[ ] material site operators ... [t]hat favoritism is not unlimited.” Every ordinance amending the code between 1996 and 2006 displays a concern with balancing the freedom of property owners to control use of private land with “public health, safety and welfare.” 59 The Assembly appears to have served that concern by limiting the conditions the Commission could affirmatively impose on rural landowners while tasking it with judging whether applications adequately mitigated impacts on adjacent properties. In sum, when reading the code “according to reason, practicality, and common sense,” we conclude that the Commission has discretion to deny a CLUP application that meets the permit conditions if it finds, based on substantial evidence, that the application does not meet the impact standards outlined in Section 40. 60 We therefore affirm both the 2021 and 2024 superior court decisions, as well as the Commission's rejection of Beachcomber's CLUP application under the code's impact standards. B. The Commission Properly Conducted Its Review. We next consider Beachcomber's remaining arguments that (1) the Commission improperly relied on “public sentiment” and LIDAR images in its 2022 denial of Beachcomber's 2022 CLUP application; (2) the Commission violated the APA by interpreting the code to give it discretion to deny the CLUP application; and (3) the Commission's denial of the 2022 CLUP application violated Beachcomber's due process rights. For the reasons below, we conclude that none of these arguments succeed. 1. The Commission's 2022 decision is supported by the record, and it did not rely on improper evidence. Beachcomber argues that the Commission's 2022 denial of its CLUP application was unsupported by substantial evidence. It specifically contests the Commission's reliance on two types of evidence: “public sentiment” and LIDAR images. Star page 10 *10 We review the merits of the Commission's 2022 decision directly. 61 We afford its decision a “presumption of validity,” and we are “required to sustain the Commission's findings if they are supported by substantial evidence.” 62 “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 63 We conclude that the Commission's decision was supported by substantial evidence, and that it did not err in considering public sentiment or LIDAR images. The Commission denied Beachcomber's application because it determined that even if all of the allowable permit conditions were imposed, the application would still not meet the impact standards of minimizing noise disturbances and visual effects on surrounding properties. It based this conclusion on the “unique amphitheater-like quality of the area,” which would carry sound to neighbors and make berms ineffective. The record contains substantial evidence to support these findings, including written and oral testimony from neighbors, photographs of the property and neighboring properties, topographic maps, and LIDAR images showing the elevation profile of Beachcomber's property in relation to its neighbors. While Beachcomber argues that “[n]othing in the code permits the Commission to take into account public sentiment when evaluating a CLUP,” the code requires a public hearing and allows “[t]hose wishing to contest issuance of [a] permit” to “submit evidence and be heard at the hearing.” 64 We further observe that the standards outlined in Section 40 focus on the impact of land use on neighboring properties. So the Commission will often need to consider testimony from adjacent property owners in order to determine what conditions will effectively minimize noise disturbance and visual impacts on those neighbors. 65 Much of the public testimony in this case was relevant to the standards. Moreover, we have said that “a planning board may always take evidence and testimony from community members into account in making its permitting decisions, but ... it may not rely on neighborhood opposition alone as a reason to deny a permit.” 66 The record does not suggest that the Commission gave undue weight to negative community sentiment to make its decision here, as the record contains considerable evidence supporting the conclusion that it would be impossible to mitigate the sound and visual impacts of Beachcomber's proposed mine. Nor does the record support Beachcomber's assertion that the Commission gave undue weight to “residents in the area wishing to enjoy residential peace.” The Commission's consideration of public testimony was not improper. Beachcomber's argument that the Commission should not have considered LIDAR images also lacks merit. The creator of some of the images explained to the Commission that the images were based on Borough data and provided “side elevation view[s]” of the proposed site in relation to neighboring properties. Beachcomber's opponents used the images to demonstrate that berms would not effectively minimize noise and visual impacts. The images were directly relevant to the question of whether Beachcomber's application could meet necessary impact standards, and Beachcomber provides no convincing challenge to that theory of relevance. Star page 11 *11 The fact that Beachcomber itself also relied on LIDAR images further detracts from its argument. And while Beachcomber asserts that the Commission “ignored actual photos and videos of the subject property and surrounding areas” that it provided, the record shows that the Commission considered Beachcomber's evidence. The fact that the Commission decided against Beachcomber simply suggests that it found the other evidence more convincing. It is not our role to “choose between competing inferences” or “evaluate the strength of the evidence” where the record contains substantial evidence to support the Commission's decision. 67 Therefore, we conclude that the Commission's decision was supported by substantial evidence, and the Commission's consideration of public testimony and LIDAR images was not improper. 2. The Commission did not violate the APA. Beachcomber also argues that the Commission violated the APA by effectively adopting a new regulation when it interpreted the code as giving it discretion, which it argues was a departure from its historical interpretation. 68 But the APA applies only to “the state boards, commissions, and officers listed” in AS 44.62.330(a), or where another statute expressly invokes the APA. 69 The Borough Planning Commission is not one of the listed entities, 70 and neither the KPB nor AS 29.40.020 (requiring boroughs to establish planning commissions) require the Commission to comply with the APA. 71 This challenge fails. 72 3. The Commission did not violate due process. Beachcomber's final argument is that the Commission violated its due process rights by denying Beachcomber's application in 2022. Beachcomber makes two procedural due process claims in addition to arguing that the Commission was biased. All of these claims fail. Beachcomber makes two procedural due process claims. We use the Mathews v. Eldridge 73 test to assess whether an administrative action violates procedural due process under the Alaska Constitution, weighing “(1) the private interest at stake; (2) ‘the risk of an erroneous deprivation’ of the private interest and the value of additional safeguards; and (3) the government interest.” 74 We have said that the concept of due process “should be applied in a manner which is appropriate in the terms of the nature of the proceeding.” 75 Additionally, and most relevant here, as a preliminary step before the Mathews test is applied, “[a] violation of due process must be alleged with particularity and a showing of ... actual prejudice, not merely the theoretical possibility of prejudice.” 76 Star page 12 *12 First, although Beachcomber objects to the Commission's decision not to reopen the record in 2022, it raises no convincing argument that it was prejudiced by that decision. 77 When the superior court remanded the matter, the Commission had already held four public hearings and received considerable written and oral testimony, including from Beachcomber. And the effectiveness of the conditions was at issue throughout that process, so Beachcomber's argument that it had not yet had a chance to address that point in its own testimony is not convincing. Moreover, the record shows that Beachcomber actually opposed reopening the record in 2022, which dampens its argument that it was “den[ied] ... an opportunity to present arguments following” the 2019 superior court decision. Second, while Beachcomber points out that four of the eleven commissioners did not participate in the vote denying its application, it does not articulate why their recusal was harmful beyond stating in conclusory fashion that this was “not adequate due process.” 78 In addition to these procedural due process claims, Beachcomber argues that the Commission “became advocates for upset neighbors” and “was no longer a neutral and unbiased decision-maker” when it denied Beachcomber's application in 2022. However this claim is similarly unsupported by specific evidence. In Griswold v. City of Homer we said that “[a]dministrative agency personnel are presumed to be honest and impartial until a party shows actual bias or prejudgment.” 79 Beachcomber bears the burden of showing that the Commission “had a predisposition to find against” it; the mere fact that the Commission ruled against Beachcomber does not satisfy that burden. 80 The record shows that the Commission wrestled with the question of whether to grant or deny Beachcomber's application throughout the process. It was split 6-3 when it denied the application in 2018 and 8-2 when it approved the application in 2019. Two commissioners would have granted the application when the other five voted to deny in 2022. Some of those who voted to deny the application in 2022 indicated that the decision had been “very difficult” and that they were voting against the application because the 2019 superior court decision required them to evaluate whether the conditions could effectively minimize impacts. Beachcomber points to no specific evidence that the Commission was biased against it, so its due process argument on this point also fails. 81 In sum, Beachcomber's due process arguments fail because Beachcomber did not adequately articulate how it was actually prejudiced by any of the alleged violations. V. CONCLUSION We AFFIRM the Commission's 2022 denial of Beachcomber's CLUP application and the related superior court decisions. Footnotes 1 The Borough is divided into two zoning districts: a municipal district and a rural district. Kenai Peninsula Borough Code (KPB) 21.04.010 (2025). Land use in the rural district is subject to fewer restrictions than in the municipal district. See id. 2 KPB 21.25.040(A) (2025) (requiring permit before using land in rural district for correctional community residential centers; commercial sand, gravel or material sites; or concentrated animal feeding operations); KPB 21.29.020(B) (2025) (describing types of material excavation, extraction, and processing that require CLUPs). 3 See KPB 12.25.050 (2025). 4 Former KPB 21.29.040 (2006). In 2023 the Borough amended many of the sections of the code at issue in this appeal. Kenai Peninsula Borough, Ordinance 2022-36 (2023). The 2023 amendments appear intended to extend the Commission's discretion over permit applications. However, we assess the claims at issue here under the code as it existed at the time Bilben's challenge was brought. For simplicity we refer to the code in present tense throughout this opinion, but in the citations we refer to “Former KPB” where the code has since changed. 5 Former KPB 21.29.050 (2006). 6 Former KPB 21.29.040 (2006) (“Only the conditions set forth in 21.29.050 may be imposed to meet [the] standards.”). 7 See KPB 21.50.110 (2025) (“The borough shall retain one or more hearing officers to conduct adjudicative proceedings under this chapter.”); KPB 21.25.050(C) (2025) (giving parties of record in CLUP permit decisions right to appeal to hearing officer). 8 LIDAR, which stands for Light Detection and Ranging, “is a technology used to create high-resolution models of ground elevation.” See What is Lidar Data and Where Can I Download It? , USGS, https://www.usgs.gov/faqs/what-lidar-data-and-where-can-i-download-it (last visited Oct. 21, 2025). 9 The Borough has since changed its position and joins Bilben in this appeal. 10 The superior court also considered whether to apply reasonable basis review to the Commission's interpretation of the code because Beachcomber advocated for that standard. It concluded, however, that reasonable basis review would lead to the same outcome as de novo review, because any deference would be to the Commission's initial 2018 denial where the Commission interpreted the code as giving it discretion. Id. 11 Prior to the adjudicative session, the Commission's Vice Chair excused two commissioners from the vote because they did not believe they had “sufficient understanding of the matter to participate,” and one commissioner recused himself because of a potential conflict of interest. One additional commissioner abstained at the time of the vote because he had not participated in previous deliberations. 12 Griswold v. Homer Advisory Plan. Comm'n , 484 P.3d at 126 (quoting Rubey v. Alaska Comm'n on Postsecondary Educ. , 217 P.3d 413, 415 (Alaska 2009)) (internal quotation marks omitted). 13 Id. (quoting Griswold v. City of Homer , 55 P.3d 64, 67-68 (Alaska 2002)). 14 See id. ; Eberhart v. Alaska Pub. Offs. Comm'n , 426 P.3d 890, 894 (Alaska 2018) (“[W]hen the statutory interpretation does not involve agency expertise, or the agency's specialized knowledge and experience would not be particularly probative ... we will substitute our own judgment.” (alteration in original) (quoting Studley v. Alaska Pub. Offs. Comm'n , 389 P.3d 18, 22 (Alaska 2017))). 15 Aiken v. Alaska Addiction Pros. Ass'n , 552 P.3d 454, 463 (Alaska 2024) (quoting Johnson v. State, Dep't of Corr. , 380 P.3d 653 , 655 (Alaska 2016)). 16 Homer Advisory Plan. Comm'n , 484 P.3d at 126 (quoting Rubey , 217 P.3d at 415 ). 17 Handley v. State, Dep't of Revenue , 838 P.2d 1231, 1233 (Alaska 1992). 18 We acknowledge that a dispute is generally moot where a party seeks relief requiring the application of an ordinance no longer in effect, as we cannot grant such relief. See Akpik v. State, Off. of Mgmt. Budget , 115 P.3d 532, 535 (Alaska 2005). Here, Beachcomber asks