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Griswold v. Homer Board of Adjustment

Supreme Court of Alaska

April 19, 2019


          Appeal from the Superior Court of the State of Alaska No. 3HO-14-00243 CI, Third District, Homer, Charles T. Huguelet, Judge.

          Appearances: Frank Griswold, pro se, Homer, Appellant.

          Holly C. Wells and Jack R. McKenna, Birch Horton Bittner & Cherot, Anchorage, for Appellees Homer Board of Adjustment and Rick Abboud.

          No appearance by Appellees John Smith, Norma Smith, Terry Yager, and Jonnie Yager.

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


          Carney, Justice.


         Frank 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 litigant.

         We reverse the superior court's decision on standing and vacate its award of attorney's fees.


         In 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.

         Frank 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 CUP 14-05.

         In May 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.

         The 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.

         The 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 determination."[1]

         The 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.

         On the 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.

         Mayor 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.

         After 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.

         After 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 21.03.040:

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.

         She 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."

         Griswold 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."

         Griswold 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.

         The Board voted and found that Griswold did not have standing. The hearing adjourned, and the Board issued a written ...

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