from the Superior Court of the State of Alaska No.
3HO-14-00243 CI, Third District, Homer, Charles T. Huguelet,
Appearances: Frank Griswold, pro se, Homer, Appellant.
C. Wells and Jack R. McKenna, Birch Horton Bittner &
Cherot, Anchorage, for Appellees Homer Board of Adjustment
and Rick Abboud.
appearance by Appellees John Smith, Norma Smith, Terry Yager,
and Jonnie Yager.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Griswold appealed a decision of the Homer Advisory Planning
Commission to the Homer Board of Adjustment. The Board
rejected his appeal for lack of standing. Griswold appealed
to the superior court, arguing that he had standing under the
Homer City Code and alleging a number of due process
violations. The superior court ruled that Griswold lacked
standing as a matter of law and found any due process errors
harmless. It also awarded the Board attorney's fees on
the appeal, reasoning that Griswold did not qualify for
protection from attorney's fees as a public interest
reverse the superior court's decision on standing and
vacate its award of attorney's fees.
FACTS AND PROCEEDINGS
March 2014 Homer residents Terry and Jonnie Yager applied for
a conditional use permit to build a covered porch ten feet
into a twenty-foot setback along Pioneer Avenue in
Homer's Central Business District. A public hearing
before the Homer Advisory Planning Commission (the
Commission) was set for the next month.
Griswold is a Homer resident who owns several lots within the
Business District, one of which is approximately 3, 280 feet
from the Yagers' property. Before the hearing he
submitted two documents to the Commission, arguing that the
setback exceptions required a variance rather than a
conditional use permit and that provisions of the Homer City
Code (HCC) allowing for setback exceptions by conditional use
permits in the Business District conflicted with state law.
After a public hearing the Commission approved the
Yagers' conditional use permit, which it referred to as
Griswold filed a notice of appeal of the Commission's
decision to the Homer Board of Adjustment (the Board). In his
notice Griswold explained that he passed the Yagers'
property "often several times a day" and that he
appreciated the open space that the setback created along the
street. He argued that the Yagers' permit would adversely
affect the value of his Business District properties by
increasing congestion in the area and that the permit would
create a "pernicious precedent" for future setback
exceptions in his neighborhood. Additionally Griswold said
this would harm the use and enjoyment of his home.
city clerk initially rejected Griswold's notice for lack
of a legal description of the property that was the subject
of the permit. The clerk later accepted Griswold's
amended notice and sent out a letter to the parties
explaining that she found Griswold's appeal
"compliant with [HCC] Sections . . . 21.93.070 and
21.93.080," provisions which respectively describe the
time in which an appeal may be filed and what a notice of
appeal must contain.
letter further noted that "[o]nly persons ... who would
be qualified to appeal under [HCC] 21.93.060 may participate
as parties in an appeal from the Commission to the Board of
Adjustment." HCC 21.93.060 defines standing to appeal
from an action of the Commission to the Board, and allows
appeals from "[a]ny person who actively and
substantively participated in the proceedings before the
Commission and is aggrieved by the action or
clerk scheduled a hearing for August 13, 2014, but it was
postponed at Griswold's request until September 15. In
the meantime City Planner Rick Abboud filed a brief
supporting the Commission's decision, and Griswold moved
to strike the brief for lack of standing.
morning of September 15 Griswold emailed the Board's
legal advisor, Holly Wells, asking whether there would be
sufficient Board members if he won his motions to disqualify
certain members. Wells responded that the hearing would have
to be postponed if he successfully moved to disqualify
members, but Griswold protested any postponement. The city
clerk then issued a notice postponing the hearing until
September 29, 2014, over Griswold's objections.
Mary Wythe and all Board members were present - one by
telephone - for the hearing on September 29, as were the city
clerk, Griswold, and the Yagers. Wells had been replaced by
Joseph Levesque as the Board's legal advisor.
the Board heard and rejected Griswold's disqualification
motions, Griswold asked if they were ready to address
standing, referring to his motion to strike Abboud's
brief for lack of standing. After being told that the Board
had to finish preliminary issues first, Griswold asked when
they would address his motion. The mayor responded, "I
think that's under the jurisdictional section [of the
hearing]." After the Board approved a motion to
supplement the record, Griswold asserted that he had no more
preliminary issues and again said that he would "like to
address [Abboud's] standing." The mayor then
determined that the Yagers had no preliminary issues of their
own, and recessed the hearing briefly.
the break the mayor opened the floor to questions of
standing. She read from HCC 21.93.060's language
regarding standing, and noted that it required an individual
appellant be "aggrieved by the action or
determination" from which he appealed. She recited the
definition of "person aggrieved" from HCC
a person who shows proof of the adverse effect an action or
determination taken or made under the Homer Zoning Code has
or could have on the use, enjoyment, or value of real
property owned by that person. An interest that is no
different from that of the general public is not sufficient
to establish aggrievement.
then asked Griswold if he had any property affected by the
decision at issue and if his "use [or] enjoyment thereof
affected by [the decision was] something different than . . .
that of anyone else in the community."
responded that his notice of appeal "was not rejected by
the clerk" and had included a statement of standing that
listed his properties. Mayor Wythe acknowledged
Griswold's properties in the Business District, but asked
him again to identify any proof of adverse impact to those
properties or his enjoyment of those properties from the
Commission's action. She further noted that his notice of
appeal "[did] not identify . . . proof that [his]
properties . . . [were] negatively impacted by this . . .
CUP." The mayor explained that she was looking for
"very specific, tangible proof of how the permit
negatively impacted Griswold. Griswold responded, "[I]f
there was no proof [the appeal] would have been rejected by
the city clerk."
then explained that approval of the Yagers' permit would
"set... a continuing precedent for other properties in
the neighborhood." "[I]f my entire neighborhood
encroaches into the setbacks," he argued, "if s
certainly going to affect my neighborhood, my enjoyment of
walking around the Business District." Griswold
explained that setbacks were meant to "provide adequate
open spaces for light and air, prevent undue concentration of
populations, lessen . . . congestion on streets and highways,
preserve and enhance the aesthetic environment of the
community, and promote the health, safety and general
welfare." The mayor asked if the permit would decrease
the value of Griswold's property, and Griswold answered
that he believed so but could not give an exact figure. But
when Griswold asked in response if she could prove it would
not devalue his property, the mayor said no. Griswold finally
noted that no one had objected to his standing "through
this whole event," and argued that standing objections
were therefore waived.
Board voted and found that Griswold did not have standing.
The hearing adjourned, and the Board issued a written