Session 05-04, a Special Meeting of the Homer City Council was called to order at 5:30 p.m. by

Mayor James C. Hornaday at the Homer City Hall Council Chambers located at 491 E Pioneer Avenue, Homer, Alaska, and opened with the Pledge of Allegiance.

PRESENT: COUNCILMEMBERS: BECK, McLAY, NOVAK, STARK, YOURKOWSKI..

Councilmember Wythe participated Telephonically.

Mayor Hornaday confirmed that Councilmember Wythe was present telephonically.

STAFF: CITY CLERK CALHOUN

ATTORNEY LOUANN CUTLER

The Council met as a Committee of the Whole from 4:00 to 5:07 p.m. Homer City Hall Council Chambers

AGENDA APPROVAL

(Addition of items to or removing items from the agenda will be by unanimous consent of the Council. HCC 1.24.040.)

The agenda was approved by consensus of the Council.

APPEAL - BOARD OF ADJUSTMENT HEARING

A. Rick and Connie Vann filed an appeal of the Homer Advisory Planning Commission's Decision on Zoning Permit 0604-036, for a 28' X 32' single story cabin with 28' X 8' attached porch/deck, along with rip-rap and fill according to site plan. Location of Zoning Permit - 149 Charles Way, Kenai Peninsula Parcel Tax ID Number - 177-140-0800, HM T6S, R13W, Section 20, portion of Government Lot 2. Property Owners of record are Rick and Connie Vann.

Mayor Hornaday announced the following:

This case is being heard pursuant to Homer City Code 21.68.060 and was delayed for good cause, the City's Attorney and City Clerk being ill. The City informed all parties and there were no objections to rescheduling the hearing from February 7, 2005 to today, February 14, 2005.

Additionally, due to the adverse weather conditions today, Mr. Butler, the Vann's Attorney and Representative, will not able to get here, and therefore, has agreed to participate telephonically.

All parties have agreed to this procedure. Those parties present were asked to reassert on the record that agreement and that they are okay with proceeding in this manner. All confirmed.

Identification of the parties present and attorneys present

Lauikitis's are not present.

Vanns present and Butler via teleconference

Planner Beth McKibben, represented by City Attorney Gordon Tans are present.

Bob Shavelson representing himself and Cook Inlet Keeper is present.

Preliminary Matters

There were no conflicts of interest disclosed.

Ex parte Contacts.

Mayor Hornaday advised that, during the Winter Carnival Parade, he and Bob Shavelson were standing next to each other, with their dogs, and that Mr. Shavelson said that he'd see the Mayor Monday night. Mayor Hornaday advised that he told Mr. Shavelson that he could not talk about that and Mr. Shavelson stated that he understood.

City Attorney Louann Cutler advised that it came to her attention, informally after she was hired, that there may have been some contact between Councilmembers and Planning Commission members. She asked if any of the Council were contacted by Planning Commission members regarding this appeal?

Councilmembers McLay, Stark, Beck, Yourkowski, Novak and Wythe all responded in the negative.

Motions of a party to dismiss, challenge procedure, etc.

Additional evidence regarding standing is not required

Bob Shavelson, Executive Director of Cook Inlet Keeper and Resident of the City of Homer, noted that he has filed an appearance. He stated that as a preliminary matter he would like to make a motion for continuation, because it seems a peculiar situation where the City Council has representation, the Planning Director has representation, but the body for which this appeal was brought, the Planning Commission, does not and that there has not been a brief filed on their behalf. He continued, that this is a very unusual situation with the City Attorney representing the Planning Director, offering a contrary opinion to the Planning Commission. Basically the City talking with two heads. It is important that there be some consistency, which would be reflected in representation from the Planning Commission.

Attorney Cutler offered Attorney Tans and Attorney Butler the opportunity to comment.

City Attorney Tans advised that he is speaking and advocating on behalf of the Administration and that he has been in that role for several months now, since he was advising Administration on this matter before it got to the appeals stage. Therefore, since he has represented, in a substantive way, the City he cannot advise the Board of Adjustment or the Planning Commission as independent Council and, further, is committed to one client and in this case that has to be the Administration. He elucidated further reasons. He stated that he does not see it necessary that the Planning Commission be represented by Counsel, that the Board of Adjustment is here to decide if the Commission made the correct decision. He further stated, for example, that it is not typical for a Superior Court Judge to have a lawyer at the Supreme Court. He voiced his opinion that what is going on today is very typical, normal and proper.

Jim Butler voiced concurrence with Mr. Tans position and that it appears to him that the Commission's record and opinion stands for itself. He noted that the time for the Commission to issue a notice of appearance or to seek independent Counsel has passed, adding that the Commission has been aware of these proceedings.

Attorney Cutler recommended that the Mayor deny the Motion for Continuance. She stated her reasons for the recommendation, which are basically the same as what Mr. Tans and Mr. Butler articulated.

Mayor Hornaday denied the motion based on reasons supplied by Counsel to the Board, Ms. Cutler.

Mayor Hornaday described the Record, holding it up, that it is a white book of one volume entitled "Appeal of Zoning Permit 0604-036, Rick and Connie Vann." He noted that the index of the record appears, beginning page 1.

Mayor Hornaday mentioned that the Vanns filed an appeal brief and that the City Planner filed a reply brief

Mayor Hornaday stated the following:

Oral arguments will be 15 minutes per party, which includes any time saved for rebuttal and that the City Clerk will be keeping the time.

The Public may not participate in oral argument and may only observe

Appellant and all parties may provide oral argument.

Laukitises - are not present.

Jim Butler, representative - Rick and Connie Vann

Gordon Tans, representative - Beth McKibben

Bob Shavelson and Cook Inlet Keeper- 1 period of fifteen minutes since their arguments are the same, unless showing made otherwise

Oral arguments were heard in the order listed above and rebuttals were heard in same order.

Counsel to the Board, Louann Cutler asked for elaboration from Mr. Butler regarding his comment that he stipulates that the takings argument is not right and reserves his right if the need arises.

Mr. Butler elaborated that they wanted to be on record regarding any potential arguments in the future, depending on these proceedings.

Ms. Cutler further inquired if the Board should assume that Mr. Butler's comments also go to the Estoppel argument.

Mr. Butler affirmed.

Mayor Hornaday stated that the Board of Adjustment may deliberate in public or in Executive Session, that if the Council decides to go into Executive Session, then they will need to come back to Adjourn the Special Meeting.

MCLAY/NOVAK - MOVE THAT WE GO INTO EXECUTIVE SESSION TO DELIBERATE ON THE VANNS' APPEAL OF THE PLANNING COMMISSION'S DECISION ON ZONING PERMIT 0604-036.

Councilmember Yourkowski objected to the Executive Session.

Ms. Cutler noted that she has provided the Board of Adjustment a Confidential Attorney Client privilege Memorandum and if the Board desires to discuss that Memorandum it should be in Executive Session.

Councilmember Novak noted that this is a good reason to go into Executive Session.

VOTE: YES: McLAY, WYTHE, STARK, NOVAK, BECK.

NO: YOURKOWSKI,

Motion carried.

The Mayor Stated that the Board of Adjustment may be meeting in future Executive Sessions to continue deliberations, as needed. The Board of Adjustment is not required to give public notice of such meetings yet will attempt to do so, these Executive Sessions will not be public. It is the intent of the Board of Adjustment to issue its final decision in a public session at a future City Council meeting, within 60 days of tonight's hearing.

Mayor Hornaday recessed the Special Meeting to Executive Session at 6:22 p.m. Reconvening the meeting at 6:58 p.m.

ADJOURNMENT

Mayor Hornaday reiterated that the Board of Adjustment will be meeting in future Executive Sessions to continue deliberations, as needed. The Board of Adjustment is not required to give public notice of such meetings yet will attempt to do so, these executive sessions will not be public. It is the intent of the Board of Adjustment to issue its final decision in a public session at a future City Council meeting, within 60 days of tonight's hearing.

BECK/NOVAK - MOVED TO ADJOURN THE SPECIAL MEETING.

There was no discussion.

VOTE: YES: NON OBJECTION. UNANIMOUS CONSENT.

Motion carried.

There being no further business to come before the Council the meeting was adjourned at 6:59 p.m.

The Regular Meeting of February 14, 2005 is scheduled to follow at 7 p.m. The next Regular Meeting is scheduled for Monday, February 28, 2005 at 7 p.m. and the next Committee of the Whole is scheduled for Monday, February 28, 2005 at 4 p.m. All meetings scheduled to be held in the Homer City Hall Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska.

______________________________________

MARY L. CALHOUN, CMC, CITY CLERK

Approved date: ___