Session 05-17, a Special Meeting of the Homer City Council was called to order at 5:32 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: McLAY, NOVAK, STARK, WYTHE, YOURKOWSKI.
STAFF: CITY ATTORNEY TANS
CITY CLERK CALHOUN
DEPUTY CITY CLERK
CITY MANAGER WREDE
CITY PLANNER McKIBBEN
ABSENT: COUNCILMEMBER: HEIMBUCH (excused)
The City Council met as a Committee of the Whole from 4:04 p.m to 5:24. Agenda Items were: Bill
Krueger's Presentation on the Conference Center Feasibility Study, Extra territorial water services, Regular
Meeting agenda items with Specific Discussion on Ordinance 05-35, Of the City Council of Homer, Alaska
Adopting the Homer Transportation Plan, Amending the Homer Comprehensive Plan to Include the
Transportation Plan and Recommending Adoption by the Kenai Peninsula Borough and Memorandum
05-111 with the Planning Commission's recommended amendments.
APPEALS - BOARD OF ADJUSTMENT (BOA) HEARING
A. Frank S. Griswold Appeal to the Board of Adjustment Regarding Conditional Use Permit 05-06, issued
to Kenai Peninsula Borough and South Peninsula Hospital.
Conditional Use Permit 05-06 - To expand the existing Hospital located at 4300 Bartlett Street, Tract A.
South Peninsula Hospital Subdivision, Fairview Subdivision Lots 1 and 4 of Block 8 and Lots 2, 3, 4, 5
and 6 of Block 7.
Mayor/BOA Chair Hornaday noted that the appeal hearing was set for today at 5:30 p.m. He asked Mr.
Griswold to please come forward and take a seat. (At the public address table.) He noted that the Council
and City Attorney Tans are present. He informed the Council that the Borough Counsel has advised City
Attorney Tans that they would not be participating. He asked Mr. Griswold to please identify himself for
the record.
Mr. Griswold identified himself, adding that he is a City resident.
Mayor/Chair Hornaday noted that there are some preliminary matters:
1. Mr. Griswold had questioned the participation of Ms. Wythe in this matter and was asked to state the grounds of his objection?
Mr. Griswold stated that his objection is that this is a quasi judicial proceeding, which has a higher standard
and that he thinks there may be a conflict or bias in the case due to a family relationship with Planning
Commissioner Kranich who was a mover of the motion at the Planning Commission. He suggested that, in
order to avoid the appearance of impropriety, Ms. Wythe step down.
Councilmember/Boardmember Wythe advised of her relationship to Mr. Kranich, that he is married to her
mother in law and that her mother in law has life tenancy rights to the Wythe guest house that is located on
the same property as the Wythe residence.
Mayor/Chair Hornaday inquired if this relationship would cause Ms. Wythe to be unable to decide this
matter fairly and impartially on the basis of the record and these proceedings alone?
Councilmember/Boardmember Wythe responded in the negative.
Mayor/Chair Hornaday ruled that Ms. Wythe does not have a conflict and that she may participate.
The Council/Board voiced no objections or desire to override the ruling.
2. There was a question of Mr. Griswold's standing to bring this appeal.
Mayor/Chair Hornaday asked Mr. Griswold to describe his interest in land that is affected by the Planning
Commission decision, (HCC 21.68.020(a)(2)) and was asked if he owned property within 300 feet of the
periphery of the hospital property?
Mr. Griswold responded that he does not own property within 300 feet of the periphery of the hospital
property. He stated that he does not believe this is the criteria for standing and that he has standing as a tax
payer citizen.
Mayor/Chair Hornaday recommended that the Board take this issue under consideration and that
proceedings continue.
There were no objections.
Mr. Griswold commented that if the Board would like further briefing on the issue of standing and if the
Board would like him to supply, he has documents from the court orders from Judge Link that address this
very similar situation.
Mayor/Chair Hornaday told Mr. Griswold that it is up to him, Mr. Griswold began reading the document
and Mayor/Chair Hornaday suggested that he submit it instead. He told Mr. Griswold that he has fifteen
minutes to make his presentation.
Mr. Griswold stated that he thought this a very simple case, that there is only one issue on appeal. He
voiced his opinion that the minutes were the most important thing in the appeal packet and that the rest was
superfluous. He stated that the minutes were put in the record backward. He voiced support of the City
Planner's recommendation that the deck be brought into compliance with the set back requirements spelled
out in HCC 21.47.040, that it did not qualify for a variance and that the Planning Commission did not have
the authority to waive the zoning regulation. Mr. Griswold said that he would like to quote from a letter
written by the City Attorney to Eileen Bechtol August 22, 1991, and read a part about the Planning
Commission not having the authority to waive the provisions of the Zoning Code. He suggested that the
Planning Commission should have known this from the Vann Appeal. He stated that the ramifications of
allowing an unauthorized exemption goes far beyond the deck itself, that it creates a very needless
precedent and he expressed his opinion of where that could go and what it could mean. He expressed his
opinion that the City and Borough should set good examples for the rest of the community, show a
willingness to abide by the same rules as everyone else and that obtaining a zoning permit for this deck and
bringing it into compliance with HCC 21.47.040 would be a very good start.
Mayor/Chair Hornaday stated that the Board would take these matters under advisement during their
deliberations and will report back.
WYTHE/STARK - MOVED THAT THE BOARD OF ADJUSTMENT GO INTO EXECUTIVE
SESSION.
There was no discussion.
VOTE: YES: NON OBJECTION. UNANIMOUS CONSENT.
Motion carried.
Mayor/Chair Hornaday recessed to Executive Session at 5:40 p.m., reconvening the meeting at
6:53 p.m.
A written decision was prepared and read into the record:
Frank Griswold appealed the decision of the Planning Commission to grant conditional use permit 05-06 to
South Peninsula Hospital and the Kenai Peninsula Borough. Mr. Griswold claims the Planning Commission
does not have authority to allow the hospital to keep a deck that encroaches into the side yard setback.
The appeal was heard by the Board of Adjustment on 27 June 2005. All members were present except
Michael Heimbuch. Mr. Griswold appeared and made oral argument. No one appeared on behalf of the applicant.
Mr. Griswold objects to the participation of Board member M. E. (Beth) Wythe because she is married to
the son of the wife of Planning Commission member Ray Kranich. They reside in different households
(separate single family residences) located on the same parcel of property. Ms. Wythe stated this
relationship will not affect her ability to impartially and fairly rule on this matter based on the record and the
proceedings before the Board. The mayor ruled that Ms. Wythe was not disqualified. The Board did not
act to overrule the mayor. Ms. Wythe has participated fully in this decision.
Mr. Griswold claims standing, not as an owner of property affected by CUP 05-06 or of property within
300 feet of the hospital, but as a taxpayer and resident of the city. The Board is divided and cannot achieve
a majority on the question of whether Mr. Griswold has standing, and consequently makes no decision on
that question.
The Board does find that the Planning Commission did not properly apply the zoning code when it passed a
motion to allow the hospital to keep the deck in its current configuration, i.e., encroaching in the side yard
setback. HCC 21.47.040 requires a 20 foot side yard setback, and the existing deck intrudes into that
setback. There is no general authority in the code to waive a setback requirement in this zoning district.
Conceivably intrusion into a setback might be authorized as a variance under HCC Chapter 21.62.
However, there are no findings in the record or in the Planning Commission's decision that would be
sufficient to grant a variance.
We note that the Planning Commission decision does not actually authorize the deck to intrude into the
setback. The written decision is in fact silent on the question of the deck.
We remand this CUP back to the Planning Commission for further consideration. If the Commission
rescinds the motion to allow the deck to remain in its present configuration, it will not be necessary to
amend the CUP, because the encroachment into the setback is already prohibited by the code. However, if
the Commission on remand continues to approve the intrusion of the deck into the setback, it must adopt
written findings and conclusions of law to support that approval, and amend the CUP accordingly.
YOURKOWSKI/STARK - MOVED FOR THE APPROVAL OF THE BOARD OF ADJUSTMENT
RULING AS READ REGARDING CUP 05-06.
There was no discussion.
VOTE: YES: NON OBJECTION. UNANIMOUS CONSENT.
Motion carried.
Mayor noted that this decision of the Board is approved on this 27th day of June, 2005, by all participating
members of the Board and that he is signing it as James C. Hornaday, Mayor and Chairman of the Board of
Adjustment.
COMMENTS OF THE AUDIENCE
Audience may comment on any matter.
There were no audience comments.
COMMENTS OF THE CITY ATTORNEY
City Attorney Tans had no comment.
COMMENTS OF THE CITY CLERK
City Clerk Calhoun had no comment.
COMMENTS OF THE CITY MANAGER
City Manager Wrede had no comment.
COMMENTS OF THE MAYOR
Mayor Hornaday had no comment.
COMMENTS OF THE CITY COUNCIL
Councilmembers had no comments.
ADJOURNMENT
There being no further business to come before the Council, Mayor Hornaday adjourned the meeting at
6:58 p.m. The Regular Meeting follows at 7p.m. The next Regular Meeting is scheduled for Monday, July
25, 2005 at 7 p.m. and the next Committee of the Whole is scheduled for Monday, July 25, 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
DATE APPROVED: ___________________