Session 08-09 a Special Meeting of the Homer City Council was called to order at 5:45 p.m. on March 24, 2008 by Mayor James C. Hornaday 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:        HEIMBUCH, NOVAK, ROBERTS, SHADLE,                                                                                  WYTHE

 

                        STAFF:                                   CITY CLERK JOHNSON

                                                                        CITY ATTORNEY TANS

                                                                        CITY PLANNER MCKIBBEN                                 

 

AGENDA APPROVAL (Only those matters on the noticed agenda may be considered, pursuant to City Council’s Operating Manual, pg. 5)

 

The agenda was approved by consensus of the Council.

 

NEW BUSINESS

 

A.        Board of Adjustment – Griswold/Refuge Chapel Non Conforming Structure

 

Appellant Frank Griswold and Appellees John Williams, Darren Williams and James Pastro appeared.

 

Preliminary Issues

 

Frank Griswold objected to the appearances of John and Darren Williams on the grounds all parties shall file an opening brief. Not all parties participated at the original proceedings; John Williams participated, but did not file an opening brief.

 

City Attorney Tans explained Homer City Code does not require anyone to file a brief as a condition to appear at the hearing. It does say they shall; it does not give a penalty or consequence for not filing a brief. Filing of a brief is not required; the provision of code is directory, not mandatory. Non filing of a brief will not prohibit a party from making an argument.

 

Mr. Griswold objected to Darren Williams’ participation in the appeal since he did not participate at the original proceeding.

 

Mayor Hornaday ruled Darren Williams as a qualified participant in the appeal as he owns the subject property.

 

City Attorney Tans commented the property owner may be represented by whomever he chooses. Darren Williams is the property owner and it can hardly be said he did not participate in his own case when he made the request to get the case going.

 

Mayor Hornaday ruled Darren Williams can participate and designate anyone he wants to represent him.

Darren Williams appointed John Williams to represent him.

 

Frank Griswold stated he filed a brief and laid out his arguments. The Williams’ have seen Mr. Griswold’s issues and may try to present new evidence.

 

Mayor Hornaday stated new evidence may not be presented, including a couple of letters from Darren and John Williams that will not be considered.

 

Councilmember Roberts questioned the March 6, 2008 memo from City Clerk Johnson pertaining to HCC 21.68.040(e).

 

Mayor Hornaday stated he overruled the Clerk’s decision and the property owner can participate and designate someone to represent him.

 

Frank Griswold stated Mr. Hornaday is attempting to act as Mayor rather than the Chairman of the Board of Adjustment. Decisions should be made by a vote of the Board. He asked for a ruling and a vote. He asked if Mayor Hornaday was acting as a Mayor or Chairman.

 

Mayor Hornaday answered he was acting in his official capacity.

 

Mayor Hornaday allotted each party 30 minutes for oral argument. Mr. Griswold may respond to the Refuge Chapel with the reserved time from his oral argument, if any.

 

Oral Argument

 

Frank Griswold stated his items were preliminary issues. He explained the September 14th letter from John Williams goes to the issue of ex-parte communications. It was written to Planning Commission Chairman Ray Kranich and was to be sent to a couple of councilmembers. The letter was copied to Mary Beth Wythe and Dennis Novak. He asked that all members of the BOA be polled to see if they had ex-parte communications with the applicant.

 

Mayor Hornaday asked for BOA members input and for lack of response stated they did not have any ex-parte communication.

 

Frank Griswold noted the conflict of interest issues with Councilmember Shadle: January 18th he advocated for the Refuge Chapel on CUP 06-01. He testified the Kodiak Brother Francis Shelter was right downtown and urged the commission to call them. He disclosed his mother attended services at the Refuge Chapel. He has offered few if other appearances at the Planning Commission offering advice. At the July 23, 2007 BOA hearing Councilmember Shadle commented “with Mr. Griswold’s abilities and how much he costs the City every month”. This was derogatory, out of line and prejudicial. It demonstrates Mr. Shadle prejudged the matter on the basis of costs and expenses. At that time Chairman Hornaday ruled he had no conflict of interest, Boardmembers Stark and Novak voted to overrule. Their three votes were not sufficient to override the chair. As of March 18, 2008 Councilmember Shadle has not filed the City’s disclosure due last November. It may be grounds for disqualification and is a violation of APOC reporting violations.

 

Mayor Hornaday asked if there were any motions or requests from the BOA on issues raised by Mr. Griswold.

 

The BOA responded there were not.

 

Frank Griswold noted the previous ruling of Councilmember Wythe’s conflict of bias due to her relation by marriage to Planning Commissioner Ray Kranich and home on the same property. Although Ms. Wythe claimed her and Ray take great lengths to insure they do not create a potential bias, she did not relate what these steps entail. Commissioner Kranich stated they do not talk about it. Mr. Griswold stated Mr. Kranich made that decision and had control over the meeting.

 

There was no comment from the BOA.

 

ROBERTS – MOVED TO DISQUALIFY MRS. WYTHE.

 

Motion died for lack of a second.

 

Mr. Griswold stated Councilmember Novak failed to file an APOC disclosure and should not be allowed to participate. He introduced the ordinance to allow dormitory use in the CBD at the request of Darren Williams of the Refuge Chapel. The timing is a little suspicious and may be a bias.

 

Frank Griswold noted all Boardmembers were not present. (Councilmember Heimbuch had previously walked out of the room, and then returned.)

 

Frank Griswold stated Council previously considered putting oral argument procedures in the Code, via Ordinance 99-8(A) but they were eliminated prior to enactment. Ordinance 05-17(S) did not even consider procedures for the BOA. HCC 21.68.070(b) says taking of testimony or other evidence shall be governed by HCC 21.68.065. HCC 21.68.065(a) states except as provided by (b) which relates to standing the BOA shall not consider new or changed circumstance. Oral argument if given does present testimony and should be considered by the BOA. There is a catchall at the end of the appeals code that allows the BOA to proceed in any lawful manner not inconsistent with the code whenever specific procedures are not applied. Mr. Griswold received no notice oral argument would be taken, nor how much time he would have to give it. It is unfair to keep the parties in the dark. There should be a ruling if oral argument is proper regardless of what the practice has been in the past.

 

Mayor Hornaday ruled oral argument was appropriate and everyone understands it is not factual. The BOA can only consider evidence presented to the Planning Commission.

 

City Attorney Tans concurred.

 

Frank Griswold stated he would reserve his 30 minutes for rebuttal. Mayor Hornaday stated he would get what was left from his 18:34 minutes. Frank Griswold stated his ruling was inconsistent as in the previous BOA he stated preliminary matters were not part of the oral argument.

John Williams stated he tried to get information in, but did not get it in timely, he was a day late. It is clear the building was built under a building permit. Mr. Griswold’s contention is the building is 104 ft. wide and cannot fit on a 100 ft. wide lot. There are 2 ft. on either side of roof line. When the structure was built they had all three lots and there was no concern if the roof went over the lot line. The building is 100 ft. wide. One surveyor said it was over on one side, another said it was over on the other side. A legal two ft. easement was given by the liquor store owner with the stipulation the Refuge Chapel would have a two ft. easement. The building is not encroaching on his property. A lot of things happened in those days, what are they to do, tear the building down? There is no other solution than nonconforming status. They bought the building, went through title insurance, and there were no encumbrances. There was no problem with the purchase. They have done everything in good faith. They got anxious and did not get the building permit in time to build the Refuge Room. They did not expand the area. If you look on the satellite picture, it had a covering. The furniture store built the garage and shelter over the back part of the building.

 

Frank Griswold objected to new evidence.

 

Mayor Hornaday ruled new evidence could not be presented.

 

John Williams stated they never asked to expand; they took down the old garage. The actual footprint of the building is less than when the bought it. He doesn’t know all the legal go-arounds. It was 1986 when the building permit was given to Larry Kuhns.

 

Frank Griswold objected to new evidence.

 

Mayor Hornaday asked if the evidence was in the Planning Commission.

 

Frank Griswold again objected.

 

Mayor Hornaday stated he makes the ruling and Mr. Griswold is not controlling the hearing, nor disrupting the hearing.

 

John Williams continued, there has never been any building on the side. He didn’t pay attention to the five ft. setback. It is not a homeless shelter. They are not there to try to cure alcoholics or drug addicts. It is more help for people out of sorts, coming into the community with no way to live; they help men get on their feet. They charge for it; homeless shelters don’t charge. They are not a flop house and do not allow people to come there drunk. They call the police when they see someone come in drunk. Frank Griswold keeps pushing as he does not want to be disrupted by those kinds of people. They have put a lot of effort and time into legal matters. They are not legal experts. They are trying to do a good job, and want to continue to do that job. He doesn’t see any reason why they should not be able to continue.

 

Darren Williams stated it has been difficult to be in limbo for three years. It would be nice to get some peace. They have contacted the Liberty Council in Maryland. The City of Homer has been gracious; 99.9% of the community is behind what they do. They have a proven track record and don’t want to go further into the legal process. There are a lot of things that are hard for lay people. They are business owners and can’t understand anything Frank is saying. They are trying to conduct business and be a service for the community of Homer. They are praying for the City Council and the Planning Commission non stop.

 

Frank Griswold stated his objection.

 

Darren Williams stated they are praying for Frank too.

 

Frank Griswold stated his objection.

 

Darren Williams stated they trust the City Council will do the right thing. They were told by the Liberty Council the City of Homer had the responsibility to give non-conforming status, as the building was built before there were any city codes. It is the City’s responsibility that the property is not devalued.

 

Rebuttal

 

Frank Griswold stated the City has no duty to grant a non-conforming status to anyone. That is why there is testimony and procedures. There is a strong public policy to eliminate non-conforming use and bring them into conformity. When the building permit was originally applied for there were three lots. On building permit 77-10-102 multiple lots were crossed out and relabeled Lot 5, Block 6, Parcel No. 177-203-0600. It only applies to one parcel. On page 43 of the packet it is clear it pertains to one parcel. If the property was subdivided a previous opinion by the City Attorney states when a parcel is re-platted the nonconforming use is terminated because it doesn’t exist on the legally existing lot. When it was changed from three to one lot the original lot no longer exists and the nonconforming use terminates. On the building permit 86-6-29 specifically states provisions: 20 ft. setback from ROW, 5 ft. setback from other boundaries. It was very clear. There is nothing in the record to indicate the evidence was appealed successfully. The fact that it was complied with until now is irrelevant. Non enforcement of code does not exonerate legalities. The Planning Commission automatically figured since the lot on Pioneer Avenue was commercial they assumed all neighboring lots were commercial. An interim zoning map that applied to code at that time was never introduced to the Planning Commission. History cannot be undone, the use cannot be grandfathered. Denying grandfather does not eliminate all use of the property. There are plenty of other places for the Refuge Chapel to do their use.

 

Mayor Hornaday called for a motion to adjourn to Executive Session.

 

HEIMBUCH/NOVAK – SO MOVED.

 

There was no discussion.

 

VOTE: YES. ROBERTS, HEIMBUCH, NOVAK, SHADLE, WYTHE

 

Motion carried.

 

The Board recessed to Executive Session at 6:24 p.m. and reconvened the meeting at 7:01 p.m.

 

Mayor Pro Tempore Novak reported the BOA gave the City Attorney directions to draft a document and the Board will meet again for review.

 

ADJOURNMENT

 

There being no further business to come before the Council the meeting was adjourned at 7:02 p.m. by Mayor James C. Hornaday. The next Committee of the Whole is scheduled for Monday, April 14, 2008 at 4 p.m. The next Regular Meeting is scheduled for Monday, April 14, 2008 at 7 p.m. All meetings are scheduled to be held in the City Hall Cowles Council Chambers.

 

 

 

______________________________

JO JOHNSON, CMC, CITY CLERK

 

Approved: _____________________