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Griswold v. Homer Board of Adjustment

Supreme Court of Alaska

September 14, 2018

FRANK GRISWOLD, Appellant,
v.
HOMER BOARD OF ADJUSTMENT, RICK ABBOUD, JOSE RAMOS, and KENTON BLOOM, Appellees.

          Appeal from the Superior Court of the State of Alaska, No. 3HO-15-00021 CI, Third Judicial District, Homer, Carl Bauman, Judge.

          Frank Griswold, pro se, Homer, Appellant.

          Holly C. Wells and Thomas F. Klinkner, Birch Horton Bittner & Cherot, Anchorage, for Appellees Homer Board of Adjustment and Rick Abboud.

          No appearance by Appellees Jose Ramos and Kenton Bloom.

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

          OPINION

          STOWERS, CHIEF JUSTICE.

         I. INTRODUCTION

         Frank Griswold twice appealed the Homer Advisory Planning Commission's approval of a conditional use permit to the Homer Board of Adjustment and later appealed the Board's second decision to the superior court, which sua sponte dismissed his appeal for lack of standing. Because Griswold did not have notice that his standing was at issue, his due process rights were violated. We therefore reverse and remand for the superior court to decide his appeal on the merits.

         II. FACTS AND PROCEEDINGS

         In January 2014 the Homer Advisory Planning Commission approved a conditional use permit allowing "[m]ore than one building containing a permitted principal use" on Lot 1-A-1 Carl Sholin Subdivision No. 5 in the Central Business District in Homer. Frank Griswold, as a resident of Homer and as an owner of several lots in the area, [1] appealed the Commission's decision to the Homer Board of Adjustment. In June the Board issued a decision affirming the Commission's decision in part; it rejected two findings for insufficient evidence and remanded for consideration of additional evidence. On remand the Commission again approved the conditional use permit. Griswold again appealed. In January 2015 the Board affirmed the Commission's decision, and Griswold appealed to the superior court.

         Oral argument before the superior court was held in February 2016, and the court subsequently acceptedsupplementalbriefing. In January 2017 the court sua sponte dismissed the appeal for lack of standing by Griswold. In its dismissal order the court recognized that "the briefs by the parties did not address the issue of standing," but it noted that AS 29.40.060 provides for an appeal by "a person aggrieved from a decision," and it determined that the concerns raised by Griswold regarding the conditional use permit "do not rise to the level of aggrievement sufficient to satisfy the Homer ordinance on standing." The court also found that Griswold's "potential injury is indistinguishable from the potential adverse effect . . . on any member of the general public of Homer."

         Griswold filed a motion for reconsideration, which was denied. He then filed a motion for clarification of the order that denied reconsideration, arguing that because "[t]he order [was] captioned 'Order For Reconsideration[, ]' . . . the [c]ourt may have intended to grant [the motion] rather than deny it." (Emphasis in original.) In response, the court issued an order explaining that "the body of the Order reflects the opinion of this [c]ourt that reconsideration was and is not appropriate." Griswold appeals.

         III. STANDARD OF REVIEW

         "We review due process claims de novo, 'adopting the rule of law most persuasive in light of precedent, ...


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