Session
10-01 a Special Meeting of the Homer City Council was called to order on
January 11, 2010 at 3:38 p.m. by Mayor Pro Tempore Beth Wythe at the Homer City
Hall Cowles Council Chambers located at 491 E. Pioneer Avenue, Homer, Alaska,
and opened with the Pledge of Allegiance.
PRESENT: COUNCILMEMBERS: HOGAN, HOWARD, ROBERTS, WYTHE, ZAK
STAFF: CITY MANAGER
WREDE
CITY
CLERK JOHNSON
CITY
ATTORNEY KLINKNER
CITY
PLANNER ABBOUD
Mayor
Hornaday was absent and submitted an email withdrawing from the case based on a
previous conflict of interest with Mr. Frank Griswold.
Councilmember
Lewis was absent due to the delay of a return flight to Homer.
Mayor
Pro Tempore Wythe stated Mr. Lewis may be allowed to participate upon review of
the case.
Attorney
Klinkner advised Mr. Lewis will need to review the record prior to being
allowed to participate. Following the proceeding the Board of Adjustment will
take the matter under advisement and may allow Mr. Lewis to review the entire
record. Council may proceed with five members present. Council can make the
determination to allow Mr. Lewis’ participation now or before meeting in
deliberations.
Mayor
Pro Tempore Wythe called for a motion as to Mr. Lewis’ participation.
ROBERTS/ZAK
- MOVED TO INCLUDE MR. LEWIS WHEN HE ARRIVES, AND HAVE HIM FOLLOW MR.
KLINKNER’S RECOMMENDATIONS.
Councilmember
Hogan expressed opposition.
VOTE: YES. ROBERTS, WYTHE, ZAK,
HOWARD
VOTE: NO. HOGAN
Motion carried.
AGENDA APPROVAL (Only those matters on the
noticed agenda may be considered pursuant to City Council’s Operating Manual,
pg. 5)
Mayor
Pro Tempore Wythe called for a motion for the approval of the agenda.
There
was no discussion.
VOTE:
YES. NON OBJECTION. UNANIMOUS CONSENT.
Motion
carried.
PUBLIC COMMENTS
UPON MATTERS ALREADY ON THE AGENDA
Frank
Griswold, city resident, addressed the last ruling, stating there was no provision
of city code to allow partial participation of a member. He asked if there were
limitations as to a member being gone for a partial or whole portion of the
meeting and the allowance to just review the record. Mr. Griswold objected,
calling it improper. He stated the Board only has the authority in code and
cannot make up code. He questioned how an absent member can judge credibility.
If they do not vote on a conflict of interest it creates a problem.
BOARD OF ADJUSTMENT
APPEAL HEARING – APPEAL OF ACCEPTANCE OF A NONCONFORMING USE AT 1440 EAST END
ROAD, BLACKWELL
Mayor
Pro Tempore Wythe stated this is an appeal by Frank Griswold of a decision by
the Homer Advisory Planning Commission accepting a nonconforming use at 1440
East End Road, Lot 5 Mutch-Gangl Tract Neptune Addition Subdivision. In addition to the Record on Appeal prepared
by the City Clerk, we have received a written brief from Frank Griswold and a
Statement Regarding Preliminary Matters from Frank Griswold.
Parties
of the record Frank Griswold, Appellant, and Don Blackwell, Appellee, were
present.
PRELIMINARY ISSUES
Mayor
Pro Tempore Wythe addressed the following preliminary issues:
Mr.
Griswold has objected to the participation of two board members due to
partiality. Those members are Beth Wythe
and Bryan Zak. For consideration of Mr.
Griswold’s objection to Mrs. Wythe’s participation, the chairing of the meeting
was passed to Francie Roberts, the next senior member.
Mayor
Pro Tempore Wythe passed the gavel to Councilmember Roberts.
Councilmember
Roberts stated that Mr. Griswold has asserted that Mrs. Wythe should not
participate because her step-father-in-law, Ray Kranich, is a member of the Planning
Commission who participated in the decision Mr. Griswold is appealing. Ms. Roberts asked Mr. Griswold if he had anything
to add to his written presentation on the subject.
Frank
Griswold said a reasonable, well informed member would question Beth Wythe’s impartiality.
Her participation would result in an appearance of bias and impropriety due to
bias. Mr. Griswold referenced a 2005 legal opinion by Kenai Peninsula Borough
Deputy Attorney Holly Montague that stated “The integrity required of public
office holders demands that even an appearance of impropriety be avoided.
Zoning decisions that are the result of prejudice will be invalidated.” Ms.
Montague cited 1996 Alaska Supreme Court case Griswold vs. City of Homer. Mr. Griswold stated Mrs. Wythe was
disqualified in the previous hearing on the Blackwell matter, and the City’s
Attorney Holly Suozzo advised it was important to be consistent in
disqualifications. Mr. Griswold referenced the verbatim recording of Councilmember
Wythe’s comments when she voluntarily excluded herself from Resolution 09-107,
Enstar and HEA. She said she would not feel bad being excluded. It indicated
she didn’t care if she participated or not.
In
this case Mrs. Wythe is not indifferent. She wants to make sure the Blackwell
application is approved and defend her step father-in-law’s findings. She lives
on the same property. They have some unwritten household rule between her
husband and step father-in-law that they don’t discuss matters. In 4 ˝ years,
who would believe somebody hasn’t mentioned this matter? In the previous matter
Mrs. Wythe mentioned her 15-year work relationship with Jill Blackwell, which
was terminated. She now implies that five more years have gone by and they are still
friends, the friendship is just not so close. Now it is a 20-year friendship.
There are multiple conflicts between her friendship with Mrs. Blackwell and
Planning Commissioner Ray Kranich, who lives at the same address. The Board
needs her to disclose the facts and it is up to the Board to determine if there
is impartiality.
Councilmember
Roberts asked Mayor Pro Tempore Wythe for any comments in response to Mr.
Griswold.
Mayor
Pro Tempore Wythe stated as a councilmember when the Blackwell case came
forward, she disclosed her 15-year working relationship with Jill Blackwell.
When the Blackwell case came forward Mrs. Blackwell had very briefly left her employment
at HEA. At that time Mrs. Wythe felt like she had much more of a vested interest.
Mrs. Blackwell has now been absent from HEA for six years. They now have casual
contact to include occasional conversations when they run into each other. The
relationship is substantially different now. Her step father-in-law Ray Kranich
and her mother-in-law live in another house on property. Her husband sees them
regularly; Mrs. Wythe doesn’t have a lot of interaction with them. They do have
occasional weekends together across the bay. They go out of her way not to
discuss issues of planning and zoning nature. She has never had a discussion
about this topic outside of City Council.
Councilmember
Roberts referenced HCC 18.18.048(c) that provides that the city official whose
partiality is at issue may excuse herself; otherwise the body shall by majority
vote rule on whether the member must be excused from participation. Mrs.
Roberts asked Mrs. Wythe if she wished to excuse herself.
Mayor
Pro Tempore Wythe did not wish to excuse herself.
ZAK/HOGAN
- MOVED TO EXCUSE MRS. WYTHE FOR A CONFLICT OF INTEREST.
Councilmember
Hogan commented it is a tough call with the relationship of Mrs. Wythe’s step
father-in-law. Mrs. Wythe explained the Kranich’s live in a separate dwelling
on the same 3 ˝ acre parcel. Councilmember Roberts stated many people live in apartments
at the same address. She believes Mrs. Wythe is conscious of the issue. Councilmember
Howard commented in her years of observation of Beth Wythe she can’t recall anyone
who has more discipline about their behavioral situations in regards to conflict
of interest or bias.
VOTE:
NO. ROBERTS, ZAK, HOWARD, HOGAN
Motion
failed.
Councilmember
Roberts returned the gavel to Mayor Pro Tempore Wythe.
Mayor
Pro Tempore Wythe stated Mr. Griswold has asserted that Mr. Zak should not
participate because he participated as a member of the Planning Commission in
the decision that Mr. Griswold is appealing.
She asked Mr. Griswold if he had anything to add to his written
presentation on the subject.
Frank
Griswold stated he included the Kenai Peninsula Borough legal opinion by Deputy
Attorney Holly Montague, as that situation is analogous to this. The Planning
Commission issued a formal decision approving the Blackwell application. Once a
judge makes a decision he cannot be impartial in deciding the case again. There
is no difference from the instances discussed in the KPB case. Comments of
Attorney Levesque were in this sort of situation it is clear there is a
conflict of bias.
Councilmember
Zak stated it would not impact him to be impartial to decide evidence. While on
the Planning Commission he made the decision based on the information he knew
then. If additional testimony is given and it changes his opinion he would not
be impartial.
Mr.
Griswold stated no additional information can be given.
Mr.
Zak stated he did not wish to excuse himself.
ROBERTS/HOWARD
- MOVED TO EXCUSE MR. ZAK FOR PARTIALITY.
Councilmember
Roberts indicated she would vote to exclude Mr. Zak. There are some concerns
when he has voted on previous information. He is an honest person and would do
his very best, although given the facts she would need to vote to excuse him.
Councilmember
Hogan asked if the City Attorney concurred with the opinion of the Borough
Attorney.
City
Attorney Klinkner commented it is a difficult issue that courts have wrestled
with. Partiality as it applies to quasi judicial board is looked at it as
partiality of a judge. There is not a strong and consistent position by courts
on whether a judge who hears a case at a lower level and participates at a later
stage. It is situation dependent. Homer City Code states whether the ability of
a quasi judicial board to make an impartial decision is impaired. It is
subjective. Homer City Code states that the circumstances are such that a decision
would be impaired. In the abundance of caution, Attorney Klinkner advised to excuse
Mr. Zak, as there is a stronger argument that partiality may be present because
of past participation.
VOTE:
YES. HOGAN, ROBERTS, WYTHE, HOWARD
Motion
carried.
Councilmember
Zak was excused from the present and further proceedings relating to the case.
Mayor
Pro Tempore Wythe stated that although Mr. Griswold did not raise the issue,
Mrs. Howard also participated as a member of the Commission in the decision
that Mr. Griswold is appealing.
Councilmember
Howard stated although she is confident she could fairly and equitably
participate, upon the advice of the attorney she would request excusal.
With
no objection from the Council, Mrs. Howard excused herself.
Attorney
Klinkner stated in Board of Adjustment appeals, in order to reverse a decision
fully a vote of the majority of a constituted board is required. Membership of
the three seated at the table and Mr. Lewis are empowered to decide the case by
majority vote. Mr. Lewis has not been disqualified. Majority vote will require
three votes of the four remaining members.
Mayor
Pro Tempore Wythe asked if any remaining Board members had any matter to
disclose for the record, such as a potential conflict of interest or ex parte
contact with a party to the appeal.
Councilmember
Hogan stated he wished he could think of something.
Mayor
Pro Tempore Wythe stated as a result of the preceding rulings, Board members
Zak and Howard will not participate in the decision of this appeal. Under HCC 21.93.550(a) a majority vote of the
fully constituted Board is required to reverse or modify the decision of the
Commission, and for this purpose the fully constituted board shall not include
those members who do not participate in the proceedings due to a conflict of
interest or disqualifying ex parte contacts, disqualifying partiality, or other
disqualification for cause. Therefore,
the fully constituted Board consists of Councilmembers Roberts, Wythe, Hogan,
and Lewis as qualified members, and a vote of at least three will be required
to reverse or modify the decision of the Commission.
Mayor
Pro Tempore Wythe further stated Mr. Griswold has objected to Mr. Blackwell’s
presenting oral argument because he did not file an entry of appearance or a
brief as required by HCC 21.93.500(b).
The notice of appearance contains that party's name and address, and
proof that the person would be qualified under HCC 21.93.060 to have filed an
appeal. Mr. Blackwell was the applicant before the Commission and the owner of
the property that is the subject of the Commission’s decision. Therefore, he
clearly has standing to participate under HCC 21.93.060(1). Since the purpose of filing a notice of
appearance is to identify a party and establish the party’s standing, and since
that purpose has been served regarding Mr. Blackwell without his having filed a
notice of appearance, she ruled that in the interest of fairness Mr. Blackwell
should be allowed to present oral argument if he wishes to do so. Mayor Pro Tempore Wythe asked if any member
of the Board wished to appeal her ruling. There was no objection from the Board
as to the ruling.
ORAL
ARGUMENT
Mayor
Pro Tempore Wythe asked if there were any other preliminary matters. There were
none stated.
Mayor
Pro Tempore Wythe recommended that the Board hear oral argument and grant each
side a total of 30 minutes, if needed. There
was no objection from the Board. She reminded both parties that the Board is
not authorized to take any additional evidence at this hearing. The Board decides the appeal solely on the
evidence in the appeal record that the Clerk has prepared. The purpose of argument is for each party to
present that party’s position on the issues in this appeal. The Board will disregard assertions of fact
by a party in oral argument unless they are supported by evidence in the appeal
record.
Oral
argument will proceed as follows. Mr.
Griswold, as the appellant, will go first.
He will have a total of 30 minutes.
If wanted, he may reserve some of that time for rebuttal after Mr.
Blackwell speaks. After Mr. Griswold has completed his presentation, Mr. Blackwell
will have 30 minutes to argue as the Appellee, and if Mr. Griswold has reserved
time for rebuttal, he will present his rebuttal after Mr. Blackwell completes
his presentation.
After
each party completes his presentation, there will be an opportunity for members
of the Board to ask questions.
There
were no questions about the procedure for oral argument.
ORAL
ARGUMENT
Appellant Frank Griswold stated
the Board was inconsistent in dealing with preliminary matters. He was allowed
to speak about bias and disqualifications and on other preliminary matters he
was not allowed to speak. The Board did not address matters brought up in
written materials, specifically whether City Planner Rick Abboud may provide
testimony. He was not an employee of the City when the decision was made, is not
an attorney, and is here representing the Planning Commission. He never entered
an appearance or filed a brief. It is unusual when a party does not brief and
participates in an oral argument. Mr. Griswold has briefed and has all his
cards on the table. The other parties had a chance to rebut. Mr. Griswold
stated now he is ambushed with no opportunity to research law or chase down
facts. It is very prejudicial. The Board did not address the portion of city
code that the parties shall file a brief.
Mr. Griswold questioned the
Board’s authority for taking oral argument as the Board is supposed to base their
decision solely on the record. The rules are arbitrary.
Mr. Griswold stated the Planning
Commission’s decision to approve Blackwell’s non conforming status is outrageous
and totally indefensible. Those that voted for it deliberately violated their oaths
of office. In 2005 when some Planning Commissioners realized that he had
standing to appeal their approval of the nonconforming status, they voted in
opposition to approval finding the original use and condition had been changed.
“Commissioner Kranich concurred the building stood vacant a long time after Bob
Rinehart moved out.” “The requested nonconforming use is not of the same
commercial nature as the original uses per HCC 21.64.030(b)” (record 87). In
2008 when the planning commissioners thought Mr. Griswold’s standing on the
appeal of their decision had been neutralized legislatively, they voted
unanimously to approve Blackwell’s application, ignoring the facts that the
property had stood vacant from 1989 to 1994 and that the original lot had been
subdivided out of existence. They found that “commercial and business
constituted grandfather uses” (record 37).
Mr. Griswold said it demonstrates
how crucial the appeal process is in restraining governmental bodies from
acting arbitrarily or inappropriately and why appeal processes need to be construed
broadly. Contrary to Bill Smith’s testimony at the February 27, 2006 council
meeting, the City of Homer has no obligation to “help out Mr. Blackwell” or
“find a way to keep him in business where he is and allow him to work there.” A
landowner has a duty to inquire of zoning officials regarding uses permitted on
his land (Utah County vs. Young, 1980,
cited in Jackson vs. KPB). It is the
case former City Attorney Tans referred to in a 1991 Planning Commission
meeting. “The burden of locating the business in an appropriately zoned site
must fall on the business person” (My
Sister’s Place vs. City of Burlington, 1981, cited in Jackson vs. KPB). “A city’s inactivity is not necessarily wrong. It
may be the result of a reasonable decision to use limited enforcement resources
for other matters” (Jackson vs. KPB).
Mr. Griswold referenced the Jackson court decision, stating it holds for
Blackwell who has been in violation of Homer zoning code since 1994. It is time
for the Board to overturn the decision of the Planning Commission. He requested
that all materials submitted be included in the record.
22.30 remain for rebuttal.
Councilmember
Roberts reassured Mr. Griswold they have received a large amount of paperwork
in the last month and a half. She believes Council has everything submitted.
Councilmember
Hogan asked Mr. Griswold where the 1989-1994 vacancy information was obtained.
Frank
Griswold answered he obtained it in the record. Per record 43, paragraph 4,
from the Planning Commission minutes of February 20, 2008, Mr. Blackwell stated
the DEC cleanup was to clean up the toxic soils from oil spills on the
property. He started the paperwork to purchase in 1992, but didn’t buy until
1994 because it took a few years to clean up. Mr. Griswold testified at the
hearings that the auto shop terminated in 1986 to 1994 as the place looked like
a toxic waste site (per record 87). Commissioner Kranich concurred the building
stood vacant a long time after Rinehart moved out. He added that Don Blackwell
had done an exemplary job of cleaning up the premises and building, but it was
a definite change of use. Mr. Griswold testified he has personal knowledge of the
property being vacant. Mr. Blackwell also admitted it was vacant. There was some
discussion at record 43 where Commission Foster noted he heard if a business is
closed because of EPA or DEC it does not count as a discontinued use or an abandoned
use. Nothing in Homer City Code says discontinuation of a use for toxic cleanup
stays a discontinue. It was idle speculation on the part of Commissioner Foster.
Appellee
Don Blackwell stated the original decision was based on misinformation and
lies. He presented evidence to show he started renting the property in 1988. HEA’s
power bills from when Bob Rinehart turned it off and he turned it on were three
months separation. He has been operating the business since them. The property was
not vacant. He bought the property in 1994 until he could get clear title after
DEC clean up. He got clear title. Nick Gangle took care of the cleanup. The
Board of Adjustment has all the evidence presented that shows the building was definitely
not vacant. Prior to Bob Rinehart turning off the power and Mr. Blackwell turning
it on, Rinehart used it as a warehouse to store auto parts before moving out
farther on East End Road.
REBUTTAL
Mr.
Griswold stated the applicant has the burden of proof of the use. Just because
someone leases property does not mean the use has been discontinued. In the
record there was an attempt to make automotive use the same use as domestic well
pump repair. Bob Rinehart repaired automotive pumps and valves; Blackwell
repaired domestic water pumps and valves. Automotive use is one use and
domestic pump repair is another use. In order to accommodate Mr. Blackwell, the
Planning Commission lumped commercial use, forgetting about the inactivity
between.
Mr.
Griswold stated even if the lot was not subdivided and there was no period of
vacancy during cleanup, the fact the previous use was automotive and that it is
not now automotive is a changed use. The only possible use that could be
grandfathered is automotive use. Until recently, automotive uses were more
specific, but recently all automotive uses have been combined into one. Auto
use will not be the same as uses currently taking place there. Mr. Griswold
stated he requested a legal opinion Attorney Gordon Tans wrote, but it was not
to be found. The original lot is no longer in existence and the use has been
changed. All uses were terminated for a period of several years while the
property was cleaned up.
City
Attorney Klinkner advised that Mr. Lewis needs to review the record before the
Board goes into deliberations. An executive session for deliberations will be
at a later date.
ROBERTS/HOGAN
- MOVED THAT WE TRY TO RECONVENE THE BOARD OF ADJUSTMENT FOR DELIBERATIONS
WEDNESDAY, JANUARY 13TH AFTER THE BOARD OF ETHICS AT APPROXIMATELY 7:00 P.M.
WITH ATTORNEY KLINKNER IN PARTICPATION.
There
was no discussion.
VOTE:
YES. NON OBJECTION. UNANIMOUS CONSENT.
Motion
carried.
COMMENTS OF THE AUDIENCE
There
was none.
COMMENTS OF THE
City
Attorney Klinkner had no comment.
COMMENTS OF THE
City
Clerk Johnson had no comment.
COMMENTS OF THE
City
Manager Wrede was no longer present.
COMMENTS OF THE MAYOR
Mayor
Pro Tempore Wythe had no comment.
COMMENTS OF THE
Councilmembers
Roberts and Hogan had no comment.
ADJOURNMENT
Mayor Pro Tempore Wythe called
for a motion to adjourn the meeting.
HOGAN/ROBERTS – MOVED TO ADJOURN.
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 4:38 p.m. by Mayor Pro Tempore Wythe. The next Regular Meeting is scheduled
for Monday, January 25, 2010 at 6:00 p.m. The Next Committee of the Whole is
scheduled for Monday, January 25, 2010 at 5:00 p.m. A Special Meeting is
scheduled for Monday, January 25, 2010 at 4:00 p.m. All meetings scheduled to
be held in the Homer City Hall Cowles Council Chambers located at 491 E.
Pioneer Avenue, Homer, Alaska.
______________________________
JO
JOHNSON, CMC, CITY CLERK
Approved:
_____________________